Education (Vocational Education and Training Reform) Amendment Act 2020

1: Title
This Act is the Education (Vocational Education and Training Reform) Amendment Act 2020.
2: Commencement
This Act comes into force on 1 April 2020
3: Principal Act
This Act amends the Education Act 1989 principal Act 2020-04-01 Education Act 1989
1: Substantive amendments to principal Act
4: Section 2 amended (Interpretation)
1: In section 2(1) industry training organisation
2: In section 2(1) tertiary component section 13C of the Industry Training and Apprenticeships Act 1992 section 492
5: Section 31B amended (Provider group for secondary-tertiary programme)
Repeal section 31B(1)﻿(b)﻿(ii)
6: Section 31F amended (Recognition as lead provider of secondary-tertiary programme)
Repeal section 31F(d)
7: Section 159 amended (Interpretation)
1: In section 159(1) council council
a: in relation to an institution other than NZIST, means the body that governs the institution in accordance with section 165
b: in relation to NZIST, means NZIST’s council members appointed under section 222G
2: In section 159(1) existing institution existing institution
3: In section 159(1) institution
b: NZIST (including, as the case requires, its subsidiaries that provide education or training, or both); or
4: In section 159(1) private training establishment private training establishment
5: In section 159(1) record of achievement record of achievement
6: In section 159(1) tertiary education provider following, but does not include an industry training organisation following
7: In section 159(1)
a: combined council
b: designated polytechnic
c: industry training organisation
d: polytechnic
e: polytechnic council
f: reconstitution day
8: In section 159(1) New Zealand Institute of Skills and Technology NZIST section 222A NZIST subsidiary trainee
a: means an employee who has a training agreement; and
b: includes an apprentice as defined in section 492 training agreement vocational education and training
a: means education and training that leads to the achievement of industry-developed skill standards, qualifications, or other awards; and
b: includes work-based training work-based training section 477 workforce development council section 479
9: In section 159(3) polytechnic,
8: Section 159B amended (Definition of organisation)
Replace section 159B(1)﻿(b)
b: a workforce development council:
9: Section 159F amended (Functions of Commission)
1: After section 159F(1)﻿(e)
ea: to ensure the availability within industry of high-quality vocational education and training; and
eb: to promote the availability of vocational education and training to people of a kind or description specified in the Commission’s statement of intent as people to whom that training has not traditionally been available (whether within a particular industry or industries, or generally); and
ec: to develop and recommend to the Minister an apprenticeship training code for the purposes of section 495
ed: to make the apprenticeship training code available as required by section 496
ee: to monitor the performance of persons carrying out apprenticeship training activities (whether or not under a plan) to ensure that they comply with the apprenticeship training code; and
ef: to exercise the powers and perform the functions of the Commission under subpart 3 of Part 34
2: In section 159F(1)﻿(f) , the Industry Training Act 1992, the Modern Apprenticeship Training Act 2000,
10: New sections 159FA to 159FC inserted
After section 159F
159FA: Duties of Commission in relation to workforce development council
1: The Commission must—
a: have regard to advice from a workforce development council in relation to its 1 or more specified industries when assessing any proposed plan under section 159YA or when considering funding an organisation other than via a plan under section 159ZC in relation to vocational education and training; and
b: give effect to advice from a workforce development council about the mix of vocational education and training needed for the 1 or more industries covered by the workforce development council when deciding to give funding approval to organisations under section 159YA(5).
2: The duty in subsection (1)﻿(b) is subject to—
a: any funding limits set by the Minister under section 159L and the Commission under section 159O; and
b: any capacity or capability constraints of organisations to provide, arrange, and support the mix of vocational education and training.
3: The Commission must advise a workforce development council, in writing, if it is unable to give effect to the workforce development council’s advice about the mix of vocational education and training needed for the council’s specified industries due to any limits or constraints referred to in subsection (2)﻿(b) and advise the workforce development council about—
a: what specific actions the Commission intends to take to address those limits or constraints within the next 3 years; and
b: its right to object to the Minister if the workforce development council reasonably believes that the Commission has not adequately responded to its advice about the mix of vocational education and training required to meet the needs of its specified industries.
159FB: Power of Commission to require information from workforce development council
1: The chief executive of the Commission may, by written notice to a workforce development council, require it to provide the chief executive with any information about the financial position or operations (or both) of the workforce development council (whether or not funded under a plan under section 159YA).
2: A workforce development council that receives a notice under subsection (1) must provide the chief executive of the Commission with the required information within the time period specified in the notice.
3: The chief executive of the Commission may, at any time, revoke or amend a notice given under subsection (1).
159FC: Power of Commission to audit workforce development council
1: For the purpose of ascertaining whether a workforce development council is complying, or has complied, with the provisions of this Act, the chief executive of the Commission may commission an independent audit of the workforce development council.
2: The audit may (without limitation) include an assessment of—
a: the performance of the workforce development council’s functions:
b: the application of funding provided to the workforce development council by the Commission.
11: Section 159G amended (Principles guiding how Commission operates)
In section 159G(b) and (c) industry training organisations workforce development councils
12: New section 159KBB inserted (Additional requirement of NZIST’s council to provide information)
After section 159KBA
159KBB: Additional requirement of NZIST’s council to provide information
1: The chief executive of the Commission may, by written notice to NZIST’s council, require it to provide any information that the chief executive considers is reasonably required in relation to the operation of NZIST or any related entity of NZIST for the purpose of determining whether there is a risk to, or arising from,—
a: the governance, management, or financial position of NZIST or a related entity of NZIST; or
b: the education and training performance of students enrolled at NZIST or a related entity of NZIST.
2: If NZIST’s council receives a notice under subsection (1), it must provide the chief executive of the Commission with the required information within the time period specified in the notice.
3: The chief executive of the Commission may revoke or amend any notice given under subsection (1).
4: For the purposes of subsection (1), related entity
13: Section 159L amended (Minister determines design of funding mechanisms)
Replace section 159L(3)﻿(d)
d: specify the conditions that the Commission must attach to funding that is provided under funding mechanisms, including (without limitation) conditions setting limits on fees that—
i: organisations may charge domestic students:
ii: organisations may charge employers for supporting their employees’ work-based training; and
14: Section 159M amended (Restrictions on design of funding mechanisms)
1: In section 159M(b) students or that organisations may charge employers
2: In section 159M
2: However, the Minister may direct that funding be provided to NZIST via a funding mechanism if the Minister reasonably considers that it is consistent with the efficient use of national resources and in the national interest to do so.
15: Section 159OA amended (Variation of determination of design of funding mechanisms)
In section 159OA(4) students and that organisations may charge employers
16: Section 161 amended (Academic freedom)
1: In the heading to section 161 freedom and institutional autonomy of institutions (other than NZIST)
2: In section 161(1) institutions that academic freedom and the autonomy of institutions universities, wananga, colleges of education, and specialist colleges that academic freedom and the autonomy of those institutions
3: After section 161(4)
5: This section does not apply to NZIST (for which section 222E
17: Section 162 amended (Establishment of institutions)
1: Repeal section 162(1)﻿(c)
2: In section 162(2) and (4) a polytechnic,
3: Repeal section 162(4)﻿(b)﻿(ii)
4: In section 162(5) polytechnic,
5: After section 162(9)
10: Subsection (5) does not apply to NZIST (for which section 222A(2)
18: Section 163 amended (Constitution of institutions)
In section 163(1) paragraph (b) or paragraph (c) of section 162(1) shall consist section 162(1)﻿(b) consists
19: Section 164 amended (Disestablishment of institutions)
1: In section 164(4)﻿(b) (for example, a disestablished polytechnic may be incorporated in a university)
2: After section 164(6)
7: To avoid doubt, nothing in this section applies to NZIST.
20: Section 165 replaced (Institutions to be governed by councils)
Replace section 165
165: Institutions to be governed by councils
1: The governing body of NZIST is its council, the members of which are appointed under section 222G
2: The governing body of every other institution is its council constituted in accordance with this Part.
3: A reference in any enactment to the council or other governing body of an institution referred to in subsection (2) must be construed as a reference to the council of the institution.
4: Subject to section 193(2), all acts or things done in the name of, or on behalf of, an institution with the authority of, or of a delegate of, the council or the chief executive are to be treated as being done by the institution.
21: Section 166 amended (Incorporation)
In section 166(1) and each college of education, polytechnic, NZIST, and each college of education,
22: Section 167 amended (Common seal)
After section 167(3)
4: This section does not apply to NZIST or its subsidiaries.
23: Section 167A amended (Method of contracting)
After section 167A(5)
6: This section does not apply to NZIST or its subsidiaries.
24: Section 169 amended (Constitutions of councils of new institutions)
Replace section 169(4)
4: This section does not apply to the membership of NZIST’s council.
25: Section 170 amended (Amendment of constitution)
Replace section 170(2)
2: Subsection (1) does not apply to NZIST’s council.
26: Section 170A amended (Constitution to provide for membership of council)
Replace section 170A(2)
2: Subsection (1) does not apply to the membership of NZIST’s council (for which section 222G
27: Section 171 amended (Membership of council)
Replace section 171(2)
2: Subsection (1) does not apply to the membership of NZIST’s council (for which section 222G
28: Section 171A amended (Certain people disqualified from appointment)
Replace section 171A(2)
2: Subsection (1) does not apply to the membership of NZIST’s council (for which section 222G(2)
29: Section 171B amended (Matters to be considered when appointing members)
Replace section 171B(3)
3: This section does not apply to the membership of NZIST’s council (for which section 222H
30: Section 171C amended (Statutes relating to appointment of members by councils of institutions)
1: In section 171C(1) (or, as the case requires, section 222AA(1)﻿(b))
2: After section 171C(6)
7: This section does not apply to the membership of NZIST’s council.
31: Section 171D amended (Limitations on number of occasions on which people may be appointed as members of councils)
Replace section 171D(5)
5: This section does not apply to NZIST’s council.
32: Section 171F amended (Certain acts and proceedings not invalidated by defects)
Replace section 171F(2)
2: This section does not apply to NZIST’s council (for which section 222G(3)
33: Section 173 amended (Term of office)
After section 173(2)
3: This section does not apply to appointments to NZIST’s council (for which section 222J
34: Section 174 amended (Vacation of office)
After section 174(4)
5: This section does not apply to a member of NZIST’s council.
35: Section 176 amended (Casual vacancies)
After section 176(3)
4: This section does not apply to appointments to NZIST’s council.
36: Section 176A amended (Individual duties of members of councils)
After section 176A(4)
5: This section does not apply to a member of NZIST’s council.
37: Section 176B amended (Accountability for individual duties)
1: In section 176B(2) or 222AJ (as the case requires)
2: After section 176B(7)
8: This section does not apply to a member of NZIST’s council.
38: Section 176C amended (Removal of members)
Replace section 176C(8)
8: This section does not apply to the removal from office of a member of NZIST’s council.
39: Section 177 amended (Chairperson and deputy chairperson)
Replace section 177(9)
9: This section does not apply to the chairperson or deputy chairperson of NZIST’s council (for which section 222I
40: Section 179 amended (Fees and allowances)
After section 179(3)
4: This section does not apply to a member of NZIST’s council.
41: Section 181 amended (Duties of councils)
In section 181
2: In addition, NZIST’s council must comply with section 97 of the Crown Entities Act 2004 in respect of its subsidiaries.
42: Section 182 amended (Determination of policy)
After section 182(5)
6: This section does not apply to NZIST (for which section 222K
43: Section 193 amended (Powers of councils)
1: In section 193(2)﻿(e) (for example, the council of a polytechnic may agree to the disestablishment of the polytechnic and its incorporation in a university)
2: In section 193(2)﻿(ea) (for example, the council of a university may agree to the incorporation of a polytechnic in the university)
3: After section 193(2)
2A: Subsection (2)﻿(e) and (ea) does not apply to NZIST’s council.
44: Section 194 amended (Statutes)
1: In section 194(1) institution and the board of an NZIST subsidiary
2: After section 194(1)
1A: Subsection (1)﻿(ia) does not apply to NZIST’s council or the board of an NZIST subsidiary.
45: Section 195 replaced (Trust property)
Replace section 195
195: Trust property
Despite anything to the contrary in this Act or any other enactment relating to the institution (including NZIST and its subsidiaries), any real or personal property held by the institution upon trust must be dealt with in accordance with the powers and duties of the institution as trustee.
46: Section 195A amended (Criteria for risk assessment of institutions)
1: In the heading to section 195A institutions (other than NZIST)
2: After section 195A(3)
4: This section does not apply to NZIST’s council (for which section 222P
47: Section 195B amended (Institutions to provide information if required)
After section 195B(5)
6: This section does not apply to NZIST’s council (for which section 222Q
48: Section 195C amended (Minister may appoint Crown observer)
After section 195C(6)
7: This section does not apply to NZIST or its subsidiaries (for which section 222R
49: Section 195D amended (Minister may dissolve council and appoint commissioner)
After section 195D(8)
9: This section does not apply to NZIST or its subsidiaries (for which section 222X
50: Section 200 amended (Bank accounts)
After section 200(3)
4: This section does not apply to NZIST’s council.
51: Section 203 amended (Institutions are Crown entities)
1: In section 203(2) institutions, and their Crown entity subsidiaries
2: Replace section 203(3)
3: The provisions of the Crown Entities Act 2004 set out in Part 1 Part 1
52: Section 222 amended (Delegation by council)
After section 222(11)
12: This section does not apply to NZIST’s council.
53: Part 15A replaced
Replace Part 15A
15A: New Zealand Institute of Skills and Technology
222A: NZIST established
1: This section establishes the New Zealand Institute of Skills and Technology ( NZIST
2: The Governor-General may, by Order in Council made on the recommendation of the Minister given after receiving a recommendation from NZIST’s council, do either or both of the following:
a: change the name of NZIST:
b: amend this Act or any other enactment by omitting from it the name of NZIST and substituting some other name.
3: To avoid doubt, NZIST does not cease to be a tertiary education institution merely because its name is changed under subsection (2).
222B: Functions of NZIST
NZIST has the following functions:
a: to provide or arrange, and support, a variety of education and training, including vocational, foundation, and degree-level or higher education and training:
b: to conduct research, with a focus on applied and technological research:
c: to be responsive to and to meet the needs of the regions of New Zealand and their learners, industries, employers, and communities by utilising NZIST’s national network of tertiary education programmes and activities:
d: to improve the consistency of vocational education and training by using skill standards and working in collaboration with workforce development councils:
e: to improve outcomes in the tertiary education system as a whole, including (without limitation) by making connections with schools and other organisations involved in tertiary education and by promoting and supporting life-long learning:
f: to improve outcomes for Māori learners and Māori communities in collaboration with Māori and iwi partners, hapū, and other stakeholders:
g: to carry out any other functions consistent with its role as a tertiary education institution.
222C: NZIST’s charter
1: NZIST must give effect to its charter as set out in Schedule 22
2: NZIST must report in its annual report on how it has given effect to the charter.
3: The duty in subsection (1) is owed to the Minister.
222D: Minister may specify administrative regions for NZIST
The Minister may, by notice in the Gazette
222E: Academic freedom of NZIST
1: It is declared to be the intention of Parliament in enacting the provisions of this Act relating to NZIST that NZIST’s academic freedom is to be preserved and enhanced.
2: NZIST’s academic freedom also applies in relation to every NZIST subsidiary that provides education or training, or both.
3: For the purposes of this section, academic freedom
a: the freedom of academic staff and students, within the law, to question and test received wisdom, to put forward new ideas, and to state controversial or unpopular opinions; and
b: the freedom of academic staff and students to engage in research; and
c: the freedom of NZIST and its staff to regulate the subject matter of its courses; and
d: the freedom of NZIST and its staff to teach and assess students in the manner they consider best promotes learning; and
e: the freedom of NZIST through its chief executive to appoint its own staff.
4: In exercising academic freedom, NZIST must act in a manner that is consistent with—
a: the need for institutions to maintain the highest ethical standards and the need to permit public scrutiny to ensure the maintenance of those standards; and
b: the need for institutions to be accountable and to properly use resources allocated to them.
5: In performing their functions, NZIST’s council and its chief executive, Ministers, departments of State, authorities, and agencies of the Crown must act in all respects so as to give effect to the intention of Parliament as expressed in this section.
6: To avoid doubt,—
a: nothing in subsection (3) limits or affects a workforce development council performing its functions under section 482(1)﻿(b) to (f)
b: the performance of those functions by the workforce development council does not limit or affect the academic freedom of NZIST as set out in subsection (3)﻿(a), (b), or (e).
222F: NZIST must establish regional divisions
1: NZIST must establish regional divisions for the purposes of—
a: appointing members to a staff committee or a students’ committee established under section 222L
b: appointing directors to an NZIST subsidiary.
2: NZIST may make statutes for the purposes of subsection (1). NZIST’s council
222G: Membership of NZIST’s council
1: NZIST’s council must have at least 8, but not more than 12, members, as follows:
a: 1 member must be a person who is a member of, and elected by, its staff committee; and
b: 1 member must be a person who is a member of, and elected by, its students’ committee; and
c: 1 member must be a person who is a member of, and elected by, its Māori advisory committee; and
d: the rest of the members must be appointed by the Minister.
2: A person is not eligible for appointment under subsection (1) if—
a: the person is subject to a property order under the Protection of Personal and Property Rights Act 1988; or
b: a personal order has been made under that Act in respect of the person that reflects adversely on their—
i: competence to manage their own affairs in relation to their property; or
ii: capacity to make or to communicate decisions relating to any particular aspect or aspects of their personal care and welfare; or
c: the person is a bankrupt who has not obtained an order of discharge, or whose order of discharge has been suspended for a term that has not yet expired or is subject to any conditions that have not yet been fulfilled; or
d: the person has at any time been removed from office as a member of a council.
3: No act or proceeding of NZIST’s council, or any member or any committee of NZIST’s council, is invalid because of—
a: a defect in the appointment or election of a member of the council or committee; or
b: a disqualification of a member of the council or committee; or
c: a defect in the convening of a meeting; or
d: a vacancy or vacancies in the membership of a council or committee.
4: For the purposes of this section,—
a: a person referred to in subsection (1)﻿(a) is a member of the council only while the person is a permanent member of the staff of NZIST or an NZIST subsidiary:
b: a person referred to in subsection (1)﻿(b) is a member of the council only if the person is a student enrolled at NZIST or an NZIST subsidiary, but may continue to be a member of the council for a period of up to 12 months after the date on which their enrolment ends.
5: To avoid doubt,—
a: all permanent members of NZIST’s or an NZIST subsidiary’s staff are eligible for appointment under subsection (1)﻿(a):
b: all students enrolled at NZIST or an NZIST subsidiary are eligible for appointment under subsection (1)﻿(b), regardless of the delivery mode by which the student receives education or training (for example, on-campus learning, distance learning, or work-based training).
222H: Matters to be considered when Minister appoints members to NZIST’s council
1: It is desirable in principle that, as far as possible, NZIST’s council should reflect—
a: the ethnic, gender, and socio-economic diversity, and the diversity of abilities, of New Zealand’s population; and
b: the fact that New Zealand is made up of a number of regions.
2: When appointing members of NZIST’s council, the Minister must have regard to subsection (1) and must appoint people who (in the Minister’s opinion)—
a: have relevant knowledge, skills, and experience in relation to governance, cultural competency, and the importance of diversity; and
b: are likely to be able to fulfil their individual duties to the council; and
c: together with the other members of the council, are capable of undertaking its responsibilities, duties, and functions.
3: A person specified in section 222G(1)﻿(a) and (b)
222I: Chairperson and deputy chairperson
1: The Minister may appoint a chairperson and deputy chairperson of NZIST’s council from among its members by giving written notice to the member concerned stating the term for which the member is appointed as chairperson or deputy chairperson.
2: The Minister may, by written notice to the member concerned, dismiss the chairperson or deputy chairperson of NZIST’s council from office as chairperson or deputy chairperson.
3: However, the Minister must not dismiss the chairperson or deputy chairperson without first consulting them on the proposed dismissal.
4: The chairperson or deputy chairperson of NZIST’s council—
a: may resign as chairperson or deputy chairperson by giving written notice to the Minister; and
b: ceases to hold office if they—
i: cease to be a member of NZIST’s council; or
ii: become the chief executive of NZIST or a member of the staff of NZIST or an NZIST subsidiary; or
iii: become a student enrolled at NZIST or an NZIST subsidiary.
5: A chairperson or deputy chairperson who resigns must give a copy of the notice of resignation to NZIST’s council.
6: The chairperson or deputy chairperson of NZIST’s council holds office as chairperson or deputy chairperson for the term for which they were appointed (but may be reappointed), unless the person earlier dies, is dismissed, resigns, or ceases to hold office under subsection (4)﻿(b).
7: If the term of office of the chairperson or deputy chairperson expires before a successor is appointed, the chairperson or deputy chairperson continues in office until their successor is appointed.
222J: Term of office
1: A member of NZIST’s council is appointed for a period not exceeding 4 years.
2: When appointing members of NZIST’s council under section 222G(1)﻿(d)
a: the day on which the member’s appointment takes effect; and
b: the term for which the member is appointed. Additional provisions applying to NZIST’s council and NZIST subsidiaries
222K: Determination of policy
1: In determining the policy of NZIST with respect to any matter, NZIST’s council must consult any board, committee, or other body established within NZIST that has responsibility for giving advice in relation to, or for giving effect to, the policy of NZIST with respect to the matter.
2: For the purposes of subsection (1), NZIST’s council must establish an academic board consisting of its chief executive and members of the staff and students of NZIST or an NZIST subsidiary to—
a: advise it on matters relating to work-based learning, courses of study or training, awards, and other academic matters; and
b: exercise powers delegated to it by the council.
3: Without limiting subsection (1), NZIST’s council must not make any decision or statute in respect of any academic matter referred to in subsection (2) unless it has requested the advice of the academic board and considered any advice given by the academic board.
4: However, a decision or statute made by NZIST’s council is not invalid merely because of a failure of the council to comply with either of subsections (1) and (3).
222L: NZIST’s council must establish advisory committees
1: NZIST’s council must establish a staff committee, a students’ committee, and a Māori advisory committee.
2: Each committee established under subsection (1) must be treated as a board established by the council under section 193(2)﻿(i).
3: Without limiting section 222K(1)
a: consult each committee established under subsection (1) on significant matters relating to its strategic direction that are relevant to the class of people represented by that committee; and
b: consider any advice given on those matters or any other matters by the committee.
4: However, a decision or statute made by NZIST’s council is not invalid merely because of a failure of the council to comply with subsection (3).
222M: Membership of advisory committees
1: When appointing members of its staff committee or its students’ committee, NZIST’s council must ensure that—
a: each committee consists of persons representing a minimum of each regional division of NZIST established under section 222F
b: each member of the staff committee is a permanent member of the teaching or general staff of NZIST or an NZIST subsidiary whom the permanent members of the teaching and general staff of NZIST or an NZIST subsidiary have elected to represent them; and
c: each member of the students’ committee is a student enrolled at NZIST or an NZIST subsidiary whom the students have elected to represent them.
2: When appointing members of its Māori advisory committee, NZIST’s council must determine in consultation with its Māori and iwi partners and stakeholders, the size and composition of the committee, but must ensure that the composition includes—
a: representation from NZIST or any of its subsidiaries; and
b: external people.
222N: NZIST must obtain consent for certain capital projects of NZIST or NZIST subsidiary
1: A capital project may be undertaken by NZIST or an NZIST subsidiary only if—
a: the cost of, or level of risk of, the project to NZIST is below thresholds set by the Secretary under subsection (2); or
b: the project is within a capital plan of NZIST approved in writing by the Secretary; or
c: NZIST has obtained the written consent of the Secretary for the project.
2: The Secretary must, after consulting NZIST, set thresholds for the purposes of subsection (1)﻿(a) and publish those thresholds on an Internet site maintained by or on behalf of the Ministry.
3: This section applies despite section 201A (which relates to how institutions may use capital and income).
222O: NZIST subsidiary must obtain consent before exercising powers under section 192(4)
Unless section 192(5) applies, an NZIST subsidiary must not exercise any of the powers in section 192(4) unless—
a: it has notified NZIST in writing of the proposed exercise of the power; and
b: NZIST has obtained the consent of the Secretary to the proposed exercise of the power by the NZIST subsidiary. Interventions
222P: Criteria for risk assessment of NZIST and related entities
1: For the purpose of exercising a power under any of sections 222R to 222X
a: NZIST and any related entity of NZIST; or
b: the education and training performance of students enrolled at NZIST and any related entity of NZIST.
2: The Secretary must publish the criteria in the Gazette
3: The criteria must be reviewed at least once in every 2 years following the date of their publication in the Gazette
4: In this section and sections 222Q to 222U related entity
222Q: NZIST or related entity must provide information if required
1: If the chief executive of the Commission has reasonable grounds to believe that NZIST or a related entity of NZIST may be at risk, the chief executive may, by written notice to NZIST’s council, require the council to provide either or both of the following:
a: specified information about the operation, management, or financial position of NZIST or a related entity of NZIST at a given time:
b: reports at specified intervals on specific aspects of the operation, management, or financial position of NZIST or a related entity of NZIST.
2: If the chief executive of the Commission requires information under subsection (1), the information required must be information that relates to the risks to NZIST or the related entity that the chief executive of the Commission is concerned about.
3: If NZIST’s council receives a notice under subsection (1) it must provide the chief executive of the Commission with the required information within the period specified in the notice.
4: The chief executive of the Commission may revoke or amend any notice given under subsection (1).
222R: Minister may appoint Crown observer
1: This section applies if the Minister believes on reasonable grounds that—
a: NZIST or a related entity of NZIST may be at risk; or
b: the education and training performance of the students enrolled at NZIST or a related entity of NZIST may be at risk.
2: The Minister may appoint a Crown observer to NZIST’s council.
3: However, a Crown observer must not be appointed unless the Minister has first—
a: consulted NZIST’s council; and
b: advised NZIST’s council that the Minister is considering appointing a Crown observer; and
c: given NZIST’s council an opportunity to comment on the proposal.
4: An appointment under this section must be in writing and must state the date on which it takes effect.
5: A Crown observer may—
a: attend any meeting of NZIST’s council (or a committee or board of NZIST’s council) to which the Crown observer is appointed; and
b: offer advice to NZIST’s council (or a committee or board of NZIST’s council); and
c: report to the Minister on any matter raised or discussed at any meeting that the person attends as a Crown observer.
6: Except as authorised by subsection (5)﻿(c), a Crown observer must, at all times, maintain confidentiality with respect to the affairs of NZIST’s council.
7: A Crown observer is not a member of NZIST’s council (or a committee or board of NZIST’s council), and may not—
a: vote on any matter; or
b: exercise any of the powers, or perform any of the functions or duties, of a member of NZIST’s council.
222S: Specialist help
1: This section applies if the chief executive of the Commission believes on reasonable grounds that—
a: NZIST or a related entity of NZIST may be at risk; or
b: the education and training performance of the students enrolled at NZIST or a related entity of NZIST may be at risk.
2: The chief executive may, by written notice to NZIST’s council, require it—
a: to obtain specialist help; or
b: to obtain specialist help for a related entity of NZIST.
3: The notice must state—
a: the help or kind of help to be obtained; and
b: the person or organisation, or kind of person or organisation, from whom or from which it is to be obtained.
4: As soon as is reasonably practicable after receiving the notice, NZIST’s council must comply with it.
5: NZIST’s council must—
a: provide the information and access, and do all other things, reasonably necessary to enable the person or organisation engaged to provide the help; and
b: to the extent that the help provided is advice, take the advice into account in performing its functions and duties; and
c: pay the person or organisation’s reasonable fees and expenses.
222T: Performance improvement plan
1: This section applies if the chief executive of the Commission believes on reasonable grounds that—
a: NZIST or a related entity of NZIST may be at risk; or
b: the education and training performance of the students enrolled at NZIST or a related entity of NZIST may be at risk.
2: The chief executive may, by written notice to NZIST’s council, require it to prepare and give to the chief executive a draft performance improvement plan for NZIST or a related entity of NZIST.
3: The notice must state—
a: the matters to be addressed by the draft plan; and
b: the outcomes that implementation of the draft plan is intended to achieve; and
c: the times by which those outcomes should be achieved; and
d: the performance measures that will be used to determine whether those outcomes have been achieved; and
e: the date by which the draft plan must be given to the chief executive.
4: NZIST’s council must prepare, and give to the chief executive by the stated date, a draft plan that complies with subsection (3).
5: The chief executive may—
a: approve the draft plan; or
b: after considering the draft plan, approve for NZIST or the related entity some other plan that complies with subsection (3) (whether a modified version of the draft plan or a different plan).
6: If the council does not comply with subsection (4), the chief executive may approve for NZIST or the related entity (as the case may be) any plan that complies with subsection (3) that the chief executive thinks appropriate.
7: The chief executive must not approve any plan other than a draft plan given to the chief executive before discussing it with NZIST’s council.
8: NZIST’s council must take all reasonably practicable steps to implement a plan approved under this section.
222U: Minister may appoint Crown manager
1: This section applies if the Minister believes on reasonable grounds—
a: that there is a risk to the operation or long-term viability of NZIST or a related entity of NZIST; or
b: that the education and training performance of the students enrolled at NZIST or a related entity of NZIST is at risk.
2: The Minister may, by written notice to NZIST’s council, appoint a Crown manager for NZIST.
3: The Minister must not appoint a Crown manager under subsection (2) without—
a: giving NZIST’s council written notice of the Minister’s intention to do so and the Minister’s reasons for intending to do so; and
b: allowing NZIST’s council a reasonable time to respond to the notice; and
c: considering any written submissions received from NZIST’s council within that time.
4: Whether a time is reasonable
5: The notice must state—
a: the name of the Crown manager and the day on which their appointment takes effect; and
b: the functions of NZIST’s council to be performed by the Crown manager; and
c: any conditions subject to which the Crown manager may perform those functions; and
d: any matters about which the Crown manager may advise NZIST’s council.
6: As soon as practicable after appointing a Crown manager, the Minister must notify the appointment in the Gazette
7: While there is a Crown manager appointed for NZIST,—
a: the Crown manager may perform any of the functions stated in the notice appointing them, and—
i: for that purpose the Crown manager has all the powers of NZIST’s council; but
ii: in performing any of those functions (and exercising any of those powers in order to do so), the Crown manager must comply with all relevant duties of NZIST’s council; and
b: NZIST’s council—
i: must not perform any of those functions; but
ii: must provide the information and access, and do all other things, reasonably necessary to enable the Crown manager to perform those functions and exercise those powers.
8: The Crown manager must perform any function under subsection (7)﻿(a) (and exercise any power in order to do so) in accordance with this Act and, in particular, must have regard to section 222E
9: NZIST’s council must pay the Crown manager’s reasonable fees and expenses.
10: If the Crown manager’s appointment has not earlier been revoked, the Minister must consider whether the reasons for the appointment still apply—
a: no later than 12 months after it was made; and
b: no later than 12 months after the Minister last considered whether they still apply.
222V: Protection of Crown manager
A Crown manager is not personally liable for any act done or omitted to be done by the Crown manager, or for any loss arising from that act or omission, if the Crown manager was acting—
a: in good faith; and
b: in the course of carrying out their functions.
222W: Powers may be used concurrently
To the extent that it is possible in practice, powers given by 2 or more of sections 222Q to 222U
222X: Minister may dissolve NZIST’s council and appoint commissioner
1: The Minister may, by written notice, dissolve NZIST’s council and appoint a commissioner to act in place of the council if the Minister believes on reasonable grounds that—
a: there is a serious risk to the operation or long-term viability of NZIST; and
b: other methods of reducing the risk have failed or appear likely to fail.
2: A notice under subsection (1) must specify—
a: the date on which the dissolution and appointment take effect; and
b: the name of the person appointed as commissioner.
3: The Minister may not exercise the power under subsection (1) unless the Minister has first—
a: consulted NZIST’s council and any other interested parties over the possible need to dissolve the council and appoint a commissioner; and
b: following that consultation, given the council written notice of the Minister’s preliminary decision that NZIST’s council should be dissolved and a commissioner appointed in its place; and
c: allowed NZIST’s council at least 21 days in which to respond to the preliminary decision; and
d: considered any submissions made by NZIST’s council about why the preliminary decision should not be confirmed.
4: As soon as practicable after giving a notice under subsection (1), the Minister must—
a: publish a copy of it in the Gazette
b: present a copy of it to the House of Representatives.
5: When a commissioner is appointed under this section, the Minister must review the appointment at least once in every 12 months following the appointment.
6: As soon as the Minister is satisfied (following an annual review or at any other time) that the risk that gave rise to the appointment of the commissioner has reduced to such an extent that it is appropriate that NZIST be administered by a council, a new council must be appointed in accordance with sections 222G to 222J
7: A commissioner’s appointment ends on the close of the day before a new council takes office.
8: Sections 195DA, 195E, and 195F apply, with any necessary modifications, as if a commissioner appointed under subsection (1) were appointed under section 195D.
222Y: NZIST’s council may request intervention
If NZIST’s council requests the Minister or the chief executive of the Commission (as the case may be) to act under any of sections 222R to 222X
a: must consider any argument or evidence supplied by NZIST’s council; and
b: must consider whether or not to act under that section; but
c: may then (if any necessary conditions are satisfied) act under another of those sections giving them power to act. Application of Crown Entities Act 2004 to NZIST’s council
222Z: Additional provisions of Crown Entities Act 2004 that apply to NZIST’s council
1: The provisions of the Crown Entities Act 2004 specified in Part 2 Part 2
2: NZIST must be treated as a statutory entity for the purpose of applying those provisions. Further provisions relating to NZIST subsidiaries
222ZA: Formation of NZIST subsidiaries
1: NZIST may, with the written approval of the Minister, form 1 or more NZIST subsidiaries.
2: Schedule 25
3: The Governor-General may, by Order in Council made on the recommendation of the Minister, specify further provisions of this Act that apply to an NZIST subsidiary formed under subsection (1) that does not provide education or training, or both.
222ZB: Application of Schedule 23
Schedule 23 clause 1
54: Section 223 amended (Programmes)
In section 223(1) subsection (2) and subsection (2), section 222E(6)
55: Section 234A amended (Fees for domestic students must not exceed maximums set in conditions of funding)
1: In the heading to section 234A students and employers
2: In section 234A(2) students or employers
3: In section 234A(3) student or an employer
56: Section 246A amended (Functions of Authority)
After section 246A(1)﻿(d)
da: to monitor, through the exercise of its powers under this Act, compliance by workforce development councils with the prescribed quality assurance requirements, and to address non-compliance:
db: to monitor the quality and results of a workforce development council’s systems and procedures for its moderation activities:
57: Section 248B amended (Standard-setting bodies)
Replace section 248B(1)﻿(a)
a: a workforce development council established under section 479
58: Section 249 amended (Approval of programmes)
In section 249(1) industry training organisation,
59: Section 250 amended (Accreditation to provide approved programmes)
Repeal section 250(6)﻿(b)
60: Section 251 amended (Application for training scheme approval)
1: In section 251(1) industry training organisation,
2: Repeal section 251(3)
3: Repeal section 251(6)﻿(b)
61: Section 252 amended (Consent to assess against standards)
In section 252(1) industry training organisation,
62: Section 253 amended (Rules)
1: Replace section 253(1)﻿(ga) and (gb)
ga: prescribing the amount of, or the method for determining, the annual fee payable by a workforce development council and when and how that fee is payable:
gb: prescribing quality assurance requirements for workforce development councils, including (without limitation) requirements relating to the performance of the relevant functions of workforce development councils:
gc: prescribing matters relating to training packages:
2: In section 253(1)﻿(m) workplace work-based
63: Section 253C amended (Minister may consent to use of certain terms in name or description of registered establishment or wananga)
1: In section 253C(2) and (2A) university, college of education, polytechnic, or institute of technology university or college of education
2: Repeal section 253C(4)
64: Section 254 amended (Fees)
1: In section 254(1) industry training organisation, workforce development council,
2: In section 254(2)﻿(c) (including quality assurance activities undertaken in accordance with the Authority’s functions under the Industry Training and Apprenticeships Act 1992)
3: Repeal section 254(2)﻿(d)
65: Section 254A amended (Power to obtain information)
In section 254A(1) industry training organisation, workforce development council,
66: Section 255 amended (Compliance notices)
1: In section 255(1) industry training organisation, workforce development council,
2: In section 255(2)﻿(d) and (7)﻿(e) workplace work-based
67: Section 292 amended (Offences relating to use of certain terms)
Replace section 292(1)﻿(c) and (d)
c: uses the term polytechnic to describe an educational establishment or facility unless the educational establishment or facility is NZIST or an NZIST subsidiary:
d: uses the term institute of technology to describe an educational establishment or facility unless the educational establishment or facility is NZIST or an NZIST subsidiary.
68: Section 299A repealed (Transitional and savings provisions relating to councils of tertiary institutions consequential on enactment of Education Amendment Act 2015)
Repeal section 299A
69: Section 321 amended (Grant to educational bodies)
In section 321(2) an industry training organisation a workforce development council
70: New Part 34 inserted
After Part 33
34: Vocational education and training
477: Interpretation
In this Part, unless the context otherwise requires,— capstone assessment Commission employment agreement funding approval industry
a: the same or similar inputs and methods of production to produce the same or similar products; or
b: the same or similar methods to provide the same or similar services Minister plan programme provider
a: NZIST:
b: an NZIST subsidiary that provides education or training, or both:
c: a government training establishment, a registered establishment, or a wananga within the meaning of those terms in section 159(1):
d: a relevant school within the meaning of section 246 qualification Qualifications Authority Qualifications Framework registered establishment skill standard
a: means a specification of skills, and levels of performance in those skills; and
b: in relation to any vocational education and training (or proposed vocational education and training), means a specification of some or all of the skills in which training is (or is proposed to be) received, and the levels of performance in those skills intended to be attained by people receiving the training specified industries trainee
a: means an employee who has a training agreement; and
b: includes an apprentice as defined in section 492 training agreement training package
a: means materials developed by a workforce development council that are designed to assist providers in developing and delivering programmes leading to the industry qualification and to enhance consistency of graduate outcomes in respect of the qualification; and
b: includes (without limitation) core content, delivery modes, and assessment methods in respect of those programmes training scheme vocational education and training work-based training
a: by or on behalf of employers in that industry (or those industries); or
b: for the benefit of employers and employees in that industry (or those industries).
478: Training agreements and apprenticeship training agreements part of employment agreement
Training agreements and apprenticeship training agreements are part of the employment agreement between the employee and employer concerned. 1992 No 55 s 3
1: Workforce development councils
479: Establishment of workforce development councils
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, establish a workforce development council for 1 or more specified industries.
2: An order made under subsection (1)—
a: must—
i: state the name of the workforce development council; and
ii: state the 1 or more specified industries that the workforce development council covers; and
iii: set out the governance arrangements for the workforce development council, including arrangements relating to the appointment, composition, suspension, or removal of members of the council; and
iv: state the additional functions (if any) conferred on the workforce development council by the Minister in accordance with section 482(1)﻿(l)
b: may—
i: outline the means by which the 1 or more specified industries covered by the workforce development council may engage with the council in relation to the performance or exercise of its functions, duties, or powers; and
ii: prescribe matters relating to the workforce development council’s use of its assets, including any assets allocated to the council from a transitional ITO under clause 55 of Schedule 1
iii: impose conditions on the performance or exercise of the workforce development council’s functions, duties, or powers; and
iv: provide for any other matters that are necessary or desirable to clarify the governance arrangements of the workforce development council.
3: In making a recommendation relating to the governance arrangements for a workforce development council, the Minister must, as far as is reasonably practicable, ensure that those arrangements provide for—
a: the collective representation of employers and employees in the 1 or more specified industries covered by the workforce development council in the governance of the council; and
b: the representation on the council of Māori employers from any or all of the 1 or more specified industries.
4: The Minister must not recommend the making of an order under subsection (1) or a significant amendment to an order made under subsection (1) unless the Minister has—
a: consulted the representatives of the 1 or more specified industries covered or proposed to be covered by the workforce development council; and
b: taken into account any views expressed by those representatives regarding—
i: the proposed name and governance arrangements of the workforce development council; and
ii: the desirability of avoiding duplication in the coverage of workforce development councils in relation to the specified industries; and
iii: the capability required by the proposed workforce development council to perform and exercise its functions, duties, and powers efficiently and effectively.
480: Disestablishment of workforce development councils
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, disestablish a workforce development council and provide for the distribution of its assets and liabilities.
2: The Minister must not recommend the disestablishment of a workforce development council under subsection (1) unless—
a: the Minister has received a request from the workforce development council or 1 or more of the specified industries covered by the workforce development council for it to be disestablished and is satisfied on reasonable grounds that there are good reasons to do so; or
b: the Minister is satisfied that it is necessary to do so because—
i: the workforce development council has persistently engaged in unlawful activity; or
ii: the workforce development council has persistently failed to perform its functions or duties; or
iii: there has been a persistent pattern of complaints to the Commission or the Minister from the 1 or more specified industries covered by the workforce development council regarding the council’s performance or exercise of its functions, duties, or powers.
481: Incorporation
Each workforce development council established under section 479
a: holding real and personal property; and
b: suing and being sued; and
c: otherwise doing and suffering all that bodies corporate may do and suffer.
482: Functions of workforce development councils
1: The functions of a workforce development council, in relation to the specified industries covered by it, are— Leadership
a: to provide skills and workforce leadership for the specified industries, including by identifying their current and future needs and advocating for those needs to be met through its work with the industries and with providers, regional bodies, and the Government: Developing and setting standards, capstone assessments, and qualifications
b: to develop, set, and maintain skill standards:
c: to develop and maintain industry qualifications for listing on the Qualifications Framework and to maintain qualifications for which the council has become the qualifications developer:
d: to develop and maintain training schemes:
e: to develop and maintain training packages:
f: to develop, set, and maintain capstone assessments based on the needs of the specified industries: Endorsing programmes and moderating assessments
g: to decide whether to endorse programmes developed by providers for approval by the Qualifications Authority under section 249:
h: to carry out moderation activities in relation to any standards and capstone assessments it sets: Advisory and representative role
i: to provide employers with brokerage and advisory services approved by the Commission:
j: to advise the Commission, as provided for in section 159FA
i: about the Commission’s overall investment in vocational education and training:
ii: about the mix of vocational education and training needed for the 1 or more specified industries covered by the workforce development council in the manner required by the Commission:
k: to represent the interests of the specified industries: Other functions
l: to perform any other functions conferred on it by the Minister in relation to the specified industries.
2: The Minister must not confer any additional function on a workforce development council under subsection (1)﻿(l) without first consulting the workforce development council.
483: Workforce development council’s functions in relation to wananga
1: Subject to subsection (2),—
a: a workforce development council may endorse a programme developed by a wananga only if requested by the wananga:
b: a capstone assessment developed by a workforce development council applies to a wananga only if requested by the wananga.
2: If a programme includes a component of work-based training, a workforce development council may perform its functions in section 482
484: Workforce development council must not operate registered establishment
1: A workforce development council must not operate or hold any interest whether financial or otherwise in a registered establishment.
2: A workforce development council must not, whether directly or through an agent,—
a: provide any education and training approved by the Qualifications Authority; or
b: operate, or hold an interest in, any organisation that provides education and training approved by the Qualifications Authority.
485: Duties of workforce development councils
1: A workforce development council must comply with any prescribed quality assurance requirements set by the Qualifications Authority relating to the performance of its functions.
2: In performing its functions, a workforce development council—
a: must take into account the needs of employers and employees in the 1 or more specified industries covered by the workforce development council but, in doing so, must also consider national and regional interests:
b: must have regard to the needs of Māori and other population groups identified in the tertiary education strategy issued under section 159AA:
c: must, to the extent that is necessary or desirable in the circumstances, work collaboratively with—
i: providers in relation to the functions set out in section 482(1)﻿(b) and (c)
ii: other workforce development councils, particularly on matters of common interest:
iii: the Qualifications Authority, in relation to qualifications development, programme endorsement, or developing, setting, or maintaining skill standards:
iv: any relevant regulatory body that performs or exercises any functions, duties, or powers under an enactment in relation to entry to an occupation in any of the specified industries covered by the workforce development council:
d: must, when performing its functions under section 482(1)﻿(i) to (k)
486: Annual fee payable by workforce development council
1: A workforce development council must pay to the Qualifications Authority an annual fee prescribed by or determined under rules made under section 253(1)﻿(ga)
2: The annual fee may recover no more than the reasonable costs, excluding those costs that are recoverable through fees charged under section 254, incurred by the Qualifications Authority for—
a: prescribing quality assurance requirements under section 253(1)﻿(gb)
b: monitoring compliance, and addressing non-compliance, with those requirements in accordance with its functions under section 246A(1)﻿(da)
c: issuing quality assurance improvement notices under section 487
3: The fee is—
a: payable by the due date prescribed in the rules; and
b: recoverable as a debt due to the Qualifications Authority.
487: Qualifications Authority may issue quality assurance improvement notice
1: The Qualifications Authority may, if satisfied that such action is reasonably necessary to maintain the quality and effectiveness of a workforce development council’s performance of its functions, issue a quality assurance improvement notice to a workforce development council.
2: A quality assurance improvement notice must—
a: set out any concerns the Qualifications Authority has about the workforce development council’s systems, practices, or procedures; and
b: specify the time within which the workforce development council is expected to address the Qualifications Authority’s concerns (which must be a reasonable time, having regard to the nature and complexity of the action required); and
c: state that, if the Qualifications Authority’s concerns are not addressed within the specified time, the Qualifications Authority may issue a compliance notice under section 488
d: state the consequence of a failure to comply with a compliance notice.
488: Qualifications Authority may issue compliance notice
1: The Qualifications Authority may issue a compliance notice to a workforce development council requiring it to do either or both of the following:
a: do, or refrain from doing, a particular thing in relation to a prescribed quality assurance requirement:
b: address any concerns set out in a quality assurance improvement notice issued under section 487
2: Section 255(3) to (6) applies to a compliance notice issued under this section.
3: If a workforce development council fails to comply with a compliance notice issued under this section, the Qualifications Authority may notify the Minister in writing.
4: A compliance notice may be issued to a workforce development council whether or not a quality assurance improvement notice has been issued under section 487
5: Nothing in this section limits the power of the Qualifications Authority to issue a compliance notice to a workforce development council in accordance with section 255. Audit
489: Application of Public Audit Act 2001
Each workforce development council established under section 479 Validity of acts
490: Act in breach of statute invalid
1: An act of a workforce development council is invalid, unless section 491
a: the act is contrary to, or outside the authority of, an Act; or
b: the act is done otherwise than for the purpose of performing its functions.
2: Subsection (1) does not limit any discretion of a court to grant relief in respect of a minor or technical breach. 2004 No 115 s 19
491: Some natural person acts protected
1: Section 490
a: that an express restriction in an Act makes the act contrary to, or outside the authority of, the Act; or
b: that the act was done otherwise than for the purpose of performing the workforce development council’s functions.
2: A person who relies on subsection (1) has the onus of proving that the person did not have, and ought not reasonably to have had, the knowledge referred to in that subsection.
3: A workforce development council must report, in its financial report required by section 159YD(2), each transaction that the council has performed in the year to which the report relates that was invalid under section 490
4: To avoid doubt, this section does not affect any person’s other remedies (for example, remedies in contract) under the general law. 2004 No 115 s 20
2: Apprenticeships
492: Interpretation
In this subpart, unless the context otherwise requires,— apprentice apprenticeship training
a: is provided for a person who is working in an industry while undertaking training in that industry; and
b: is provided wholly or partly at the person’s workplace, mainly by or on behalf of the person’s employer; and
c: consists of a programme of study or training, or both, leading to a qualification in the skills of an industry that provides entry into an occupation in that industry; and
d: is facilitated by a person that receives funding from the Commission apprenticeship training agreement 1992 No 55 s 13C
493: Apprenticeship training activities must be included in proposed plan
1: A provider that seeks funding for an apprenticeship training activity (as described in subsection (2)) via a plan must specify in its proposed plan how it intends to carry out that activity.
2: The apprenticeship training activities
a: to promote apprenticeship training generally through providing information, guidance, and advice to employers and prospective apprentices about the benefits of an apprenticeship:
b: to identify—
i: prospective apprentices; and
ii: employers able to offer apprenticeship training that satisfies all of the work-based requirements of the approved programme of the provider:
c: to provide or arrange training or employment that may lead to apprenticeship training for prospective apprentices:
d: to help prospective apprentices enter into apprenticeship training agreements:
e: to produce, and facilitate (in consultation with the apprentice and the apprentice’s employer) the implementation of, individual training plans consistent with an apprentice’s apprenticeship training agreement:
f: to monitor individual apprentices to ensure that their apprenticeship training leads them to attain, within a reasonable time, the level of skills necessary to complete a qualification in the skills of the specified industry:
g: to ensure, as far as is reasonably practicable, that apprenticeship training, and every apprenticeship training agreement, within the specified industry is consistent with any apprenticeship training code:
h: to provide or procure appropriate pastoral care and support for apprentices, having regard to the age and experience of the apprentice and the contents of any apprenticeship training code. 1992 No 55 s 13D
494: Duties of persons carrying out apprenticeship training activities
1: Persons carrying out apprenticeship training activities (whether or not via a plan) must,—
a: in performing any apprenticeship training activity described in section 493(2)
b: before helping a person to enter into an apprenticeship training agreement, advise that person to seek advice about the agreement from an independent person.
2: A provider must give written notice to an apprentice under the provider’s care if the provider becomes aware that it is impracticable for the apprentice to continue their apprenticeship training with their current employer.
3: A notice under subsection (2) must advise the apprentice—
a: that the provider is able to assist the apprentice with finding a new employer with whom the apprentice can complete their apprenticeship training; and
b: if the apprentice so requests, the provider will make reasonable endeavours to find a new employer with whom the apprentice can complete their training. 1992 No 55 s 13E
495: Minister may issue apprenticeship training code
1: The Minister may, by notice in the Gazette
a: is consistent with this subpart; and
b: sets out the responsibilities of apprentices, their employers, and persons carrying out apprenticeship training activities under this subpart.
2: The apprenticeship training code may, but need not, be a code recommended by the Commission.
3: Before issuing an apprenticeship training code, the Minister may consult any persons or organisations as the Minister considers appropriate.
4: The notice under subsection (1) must—
a: specify the date on which the apprenticeship training code comes into force (which must be at least 28 days after the date on which the notice is published); and
b: either—
i: set out the apprenticeship training code in full; or
ii: give enough information to identify the code and state where copies of the code may be obtained.
5: Before issuing an apprenticeship training code under subsection (1), the Minister must consult the relevant workforce development council that covers the 1 or more specified industries to which the code relates. 1992 No 55 s 13F
496: Availability of apprenticeship training code
An apprenticeship training code issued by the Minister must be published on an Internet site maintained by or on behalf of the Commission. 1992 No 55 s 13G
497: Apprenticeship training code to be taken into account by mediator, Employment Relations Authority, and Employment Court
In exercising or performing, in relation to a matter concerning an apprentice, any power or function under the Employment Relations Act 2000, the following must take into account every applicable element of any apprenticeship training code:
a: a person providing mediation services under that Act:
b: the Employment Relations Authority:
c: the Employment Court. 1992 No 55 s 13H
498: Application of Legislation Act 2012 to apprenticeship training code
An apprenticeship training code is a disallowable instrument, but not a legislative instrument, for the purposes of the Legislation Act 2012, and must be presented to the House of Representatives under section 41 of that Act. 1992 No 55 s 13I
3: Training levy
499: Interpretation
For the purposes of this subpart,— ballot section 508 closing date section 513(b) levy group member of an industry qualifying member section 517 relevant industry 1992 No 55 s 25
500: Purpose of levy
The purpose of this subpart is to enable the making of Orders in Council imposing a training levy on the members of an industry, payable to a workforce development council, if a ballot of those members shows sufficient support for the imposition of the levy. 1992 No 55 s 24 Imposition of levy
501: Levy may be imposed by Order in Council
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, impose a levy on qualifying members of a levy group that is payable to a workforce development council.
2: The Minister must not recommend the making of an Order in Council unless the Minister is satisfied on reasonable grounds of the matters in section 502
3: A levy may be payable to—
a: 1 workforce development council by all qualifying members of the industry that is covered by that council; or
b: 1 workforce development council by all qualifying members of a specific industry that is within the range of industries covered by that council; or
c: more than 1 workforce development council, jointly, by all qualifying members of an industry that is covered by those councils.
4: A levy order is a legislative instrument and a disallowable instrument for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act. 1992 No 55 s 26
502: Restrictions on making of levy orders
1: The Minister must not recommend the making of a levy order unless satisfied on reasonable grounds that—
a: the workforce development council 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 508 to 515
b: at least 60% of the ballot papers distributed were validly completed and returned before the closing date to the independent returning officer conducting the ballot; and
c: of the 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 on which 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 workforce development council 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 the Commission and may consult any other persons that the Minister considers appropriate. 1992 No 55 s 27
503: Matters to be specified in levy orders
A levy order must specify the matters set out in Schedule 24 1992 No 55 s 28
504: 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 of the relevant workforce development council performing its functions under section 482
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 work-based 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: Subsection (4)﻿(b) does not prevent a workforce development council 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. 1992 No 55 s 29
505: Levy order may require provision of information
A levy order may require qualifying members of the levy group to provide information to the workforce development council, or some other person or body, for the purpose of enabling or assisting the determination of the amount of levy payable. 1992 No 55 s 30
506: Orders are confirmable instruments
1: The explanatory note of a levy order made under section 501
a: it is a confirmable instrument under section 47B of the Legislation Act 2012; and
b: it is revoked at a time stated in the note, unless earlier confirmed by an Act of Parliament; and
c: the stated time is the applicable deadline under section 47C(1)﻿(a) or (b) of that Act.
2: The Minister on whose recommendation a levy order was made must, by notice published in the Gazette
a: revoked; or
b: disallowed under Part 3 of the Legislation Act 2012; or
c: confirmed by an Act of Parliament. 1992 No 55 s 51
507: 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 Part 3 of the Legislation Act 2012.
2: A levy order is revoked if the workforce development council responsible for administering the levy is disestablished under section 480 1992 No 55 s 52 Ballots
508: Independent returning officer must conduct ballot
A ballot must be conducted by an independent returning officer appointed by the workforce development council and approved by the Minister. 1992 No 55 s 31
509: Workforce development council must identify potential members of levy group
1: A workforce development council 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 council’s records, and from records that may be available from other workforce development councils, information that can 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 workforce development council 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. 1992 No 55 s 32
510: 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 workforce development council under section 509(2)
b: any other person who 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—
a: describe the industry that is intended to be covered by the proposed levy order; and
b: state that the returning officer considers that the person is or may be a member of that industry; and
c: state 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: state that the person must notify the returning officer if the person disputes that the person is a member of the industry intended to be covered by the proposed levy order (a coverage dispute
e: state the date by which that notification of a coverage dispute must be received. 1992 No 55 s 33
511: Commission must resolve coverage disputes
If the returning officer receives a notice under section 510(2)﻿(d) section 525 1992 No 55 s 34
512: Population to be balloted
As soon as practicable after all coverage disputes have been finally determined (including any appeals under section 526(2) 1992 No 55 s 35
513: 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 24 1992 No 55 s 36
514: Returning officer must count votes
The returning officer must collect all validly completed ballot papers received by the returning officer at the closing date and calculate—
a: the proportion of the total number of ballot papers sent by the returning officer under section 512
b: the proportion of the validly completed ballot papers received by the returning officer 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 the returning officer 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 on which the ballot closed and on the same basis as the levy is proposed to be charged as set out in the ballot paper). 1992 No 55 s 37
515: 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. 1992 No 55 s 38 Collection of levy
516: Levy is payable by qualifying members to workforce development council
If a levy order is made, the levy specified in the order is payable by every qualifying member of the levy group to the workforce development council named in the levy order. 1992 No 55 s 39
517: 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 the ballot was 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. 1992 No 55 s 40
518: Method of collecting levy
1: A workforce development council 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 519
2: A workforce development council may recover levies due from any qualifying member of the levy group—
a: by deducting the amount due from any amount the workforce development council owes that qualifying member; or
b: as a debt due to the workforce development council in any court of competent jurisdiction. 1992 No 55 s 41
519: 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 workforce development council.
2: If a levy order specifies a person who must act as a collection agent under subsection (1), the levy order must also specify an amount from, or a percentage of, the levy money collected that the person may retain as a fee for providing the collection service. 1992 No 55 s 42 Duties of workforce development councils and others in relation to levies
520: Levy funds must be kept in separate bank accounts and used only for authorised purposes
1: A workforce development council 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 only the following purposes:
a: depositing amounts of levy paid or recovered; and
b: making payments out of levy funds.
2: Only people expressly authorised by the workforce development council 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. 1992 No 55 s 44
521: Duty to keep records
A workforce development council 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. 1992 No 55 s 45
522: Duty to provide annual report
1: As soon as practicable after the end of a financial year during which a levy has been paid to a workforce development council under a levy order, the workforce development council—
a: must prepare, in respect of that year, financial statements in accordance with generally accepted accounting practice (within the meaning of section 8 of the Financial Reporting Act 2013); 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 workforce development council 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 workforce development council’s annual report for that year.
4: A workforce development council that is required by subsection (3) to include financial statements in its annual report must, as soon as that report has been completed, give a copy to the Minister, and the Minister must present a copy to the House of Representatives not later than 6 sitting days after receiving it.
5: Despite subsection (4), if an enactment other than this Act requires a workforce development council 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 instead of subsection (4).
6: A workforce development council that is required by subsection (3) to include financial statements in its annual report must take all reasonable steps to ensure that every person primarily liable for paying the levy that is reflected in those financial statements receives a copy of the annual report as soon as is reasonably practicable after the report has been completed. 1992 No 55 s 46
523: Duty to protect commercially sensitive information
A person who receives commercially sensitive information for the purposes of carrying out a function or an activity under this Part, or under a levy order, must take reasonable steps to protect that information. 1992 No 55 s 47 Disputes
524: Arbitration or mediation system must be established
1: A workforce development council that receives a levy under a levy order must establish a method of arbitration or mediation in the case of disputes regarding—
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. 1992 No 55 s 48
525: Disputes about coverage
1: If a returning officer refers a dispute to the Commission under section 511
2: The workforce development council 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 the dispute. 1992 No 55 s 49
526: Appeals to District Court
1: If a dispute is unresolved after arbitration or mediation in accordance with the method specified in the levy order, or if a party wishes to appeal against a decision of an arbitrator or mediator, the dispute may be referred, or the decision may be appealed, to the District Court.
2: A determination by the Commission under section 525
3: An appeal under subsection (2) may be made to the District Court by the person disputing membership of the levy group or by the workforce development council that is proposing to impose, or responsible for administering, the levy. 1992 No 55 s 50
71: Schedule 1 amended
1: In Schedule 1, repeal clause 17(3)
2: In Schedule 1, after Part 9 Part 10 Schedule 1
72: Schedule 13A amended
1: After the Schedule 13A
1: Provisions relating to all tertiary education institutions
2: In Schedule 13A Part 2 Schedule 2
73: Schedule 19 repealed
Repeal Schedule 19
74: New Schedules 22 to 25 inserted
1: After Schedule 21 Schedule 3
2: After Schedule 22 Schedule 4
3: After Schedule 23 Schedule 5
4: After Schedule 24 Schedule 6
2: Repeals, revocations, and other amendments
75: Repeal of Industry Training and Apprenticeships Act 1992
The Industry Training and Apprenticeships Act 1992 2020-04-01 Industry Training and Apprenticeships Act 1992
76: Repeal of Education (Polytechnics) Amendment Act 2009
The Education (Polytechnics) Amendment Act 2009 2020-04-01 Education (Polytechnics) Amendment Act 2009
77: Orders revoked
The following orders are revoked:
a: Education (Disestablishment of Tairāwhiti Polytechnic and Incorporation in Eastern Institute of Technology) Order 2010
b: Education (Disestablishment of Aoraki Polytechnic and Incorporation in Christchurch Polytechnic Institute of Technology) Order 2015
c: Education (Disestablishment of Bay of Plenty Polytechnic and Waiariki Institute of Technology and Incorporation into Waiariki Bay of Plenty Polytechnic) Order 2016 2020-04-01 Education (Disestablishment of Tairāwhiti Polytechnic and Incorporation in Eastern Institute of Technology) Order 2010 Education (Disestablishment of Aoraki Polytechnic and Incorporation in Christchurch Polytechnic Institute of Technology) Order 2015 Education (Disestablishment of Bay of Plenty Polytechnic and Waiariki Institute of Technology and Incorporation into Waiariki Bay of Plenty Polytechnic) Order 2016
78: Consequential amendments to other enactments
1: Amend the Acts specified in Part 1
2: Amend the legislative instruments specified in Part 2 2020-04-01 Accident Compensation Act 2001 Building Act 2004 Care and Support Workers (Pay Equity) Settlement Act 2017 Crown Entities Act 2004 Electoral Act 1993 Financial Advisers Act 2008 Income Tax Act 2007 Legislation Act 2012 Legislation Act 2019 Local Government Official Information and Meetings Act 1987 Ngāti Tūwharetoa Claims Settlement Act 2018 Ombudsmen Act 1975 Plumbers, Gasfitters, and Drainlayers Act 2006 Public Audit Act 2001 Real Estate Agents Act 2008 Residential Tenancies Act 1986 Taratahi Agricultural Training Centre (Wairarapa) Act 1969 Accident Insurance (“Counsellor”) Regulations 1999 Electronic Identity Verification Regulations 2013 Fire and Emergency New Zealand (Fire Safety, Evacuation Procedures, and Evacuation Schemes) Regulations 2018 Health and Safety at Work (Mining Operations and Quarrying Operations) Regulations 2016 International Student Contract Dispute Resolution Scheme Rules 2016 National Civil Defence Emergency Management Plan Order 2015 Real Estate Agents (Licensing) Regulations 2009 Sale and Supply of Alcohol Regulations 2013 Student Allowances Regulations 1998