Training Guarantee (Outstanding Trainer) Regulations (Cth)

Statutory Rules 1991 No. 3091

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Training Guarantee (Outstanding Trainer) Regulations

I, THE GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Training Guarantee (Administration) Act 1990.

Dated 9 October 1991.

BILL HAYDEN

Governor-General

By His Excellency's Command,

JOHN DAWKINS

Minister of State for Employment, Education

and Training

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Citation

1. These Regulations may be cited as the Training Guarantee (Outstanding Trainer) Regulations.

Commencement

2. These Regulations are taken to have commenced on 1 July 1991.

Interpretation

3. In these Regulations, unless the contrary intention appears:

"Act" means the Training Guarantee (Administration) Act 1990;

"approved" means approved by the Minister or a decision maker;

"business group" has the same meaning as in subsection 18A (4) of the Act;

"change in circumstances", in relation to an employer, means:

(a) a change in the name or the registered address of the employer; or

(b) the person who holds the office of chief executive officer of the employer ceases to hold the office and another person is appointed to the office; or

(c) a change in the business undertaking of the employer; or

(d) bankruptcy or liquidation of the employer; or

(e) an anticipated or actual failure to comply with any of the requirements necessary for the issue of a certificate under regulation 8 or 9; or

(f) if the employer is a business group—a significant change in the relationship between the corporations in the group which is likely to affect EOT status;

"chief officer" means:

(a) if the employer is a business group—the chief executive officer of 1 of the corporations in the group nominated for the purposes of this definition; and

(b) in all other cases—the chief executive officer of the employer;

"decision maker" means a person empowered under subregulation 11 (2) or (3) to make decisions about EOT status and to revoke a decision about EOT status;

"EOT status" means eligible outstanding trainer status;

"exemption period" means the period for which EOT status is granted

"industry training agent" means an industry training agent registered

under section 91 of the Act;

"nominated year" means the year in which the employer lodges an application for status as an eligible outstanding trainer;

"reference year" means a year in which the employer meets the requirements of subregulations 8 (2) and 9 (2) and must be the year preceding the nominated year;

 

"registered company auditor" has the same meaning as in the Corporations Law;

"required fee" means:

(a) for the year commencing on 1 July 1991—$150; and

(b) for a later year—the amount calculated by multiplying the required fee for the previous year by the indexation factor for the later year.

Training consultative committee

4. (1) In these Regulations, a reference to a training consultative committee is a reference to a committee:

(a) established under:

(i) an industrial award; or

(ii) procedures agreed in writing between the employer and employees or their representatives; and

(b) of which:

(i) at least 50% of the members are employee representatives; and

(ii) at least 1 member is a senior management representative; and

(c) whose charter gives the committee clear responsibilities in relation to developing and monitoring the employer's training.

(2) If the employer's work force:

(a) is dispersed over a number of discrete locations; or

(b) is divided into a number of distinct workplaces;

a training consultative committee for the whole of the employer's work force must be established for the purposes of subregulation (1) even if a training consultative committee already exists for one or more of the locations or workplaces.

Application for exemption as an outstanding trainer

5.(1) An employer may apply to be taken to be an eligible outstanding trainer for the purposes of section 18A of the Act.

(2) An application must:

(a) be in accordance with the approved form; and

(b) have with it the required fee; and

(c) if the application is made by the members of a business group—have attached an election in accordance with regulation 6; and

(d) include a statement in accordance with regulation 7; and

(e) have attached certificates of compliance issued under regulations 8 and 9; and

(f) have attached an authorisation in accordance with regulation 10; and

(g) be lodged in the nominated year by forwarding by certified mail to:

The Secretary

Department of Employment, Education and Training

GPO Box 9880

CANBERRA ACT 2601.

(3) An application that is not in accordance with subregulation (2) must be disregarded and returned to the applicant.

Election to be treated as a single employer

6.(1) Two or more corporations who are members of a business group may elect to be treated, for 3 consecutive years, as a single employer for the purposes of section 18A of the Act.

(2) An election must:

(a) be in writing; and

(b) state the name and registered address of each corporation that is a member of the group; and

(c) state the name of, and position held by, the person who is to be the chief officer of the employer for the purposes of the definition of chief officer; and

(d) be signed by the chief executive officer of each corporation.

Declaration by chief officer

7. The statement required under paragraph 5 (2) (d) must be signed by the chief officer of the employer and declare that to the best of his or her knowledge and belief the employer:

(a) is eligible to apply for EOT status; and

(b) will continue to be eligible for that status for the exemption period.

Certificate of compliance as to provision of training

8. (1) A certificate of compliance relating to the provision of training:

(a) may be issued by:

(i) an industry training agent; or

(ii) a training consultative committee; and

(b) must state that the employer meets the requirements set out in subregulation (2); and

(c) must identify the eligible training programs delivered by the employer in the reference year.

(2) A body authorised under subregulation (1) may only issue a certificate of compliance if it is satisfied that, for the reference year:

(a) the employer had a training plan that was approved by the officer who was authorised by the employer to implement the training plan; and

(b) the plan showed the range of planned training activities and was supported by documentation that:

(i) identified the target group for, and the timing and frequency of, each training program; and

(ii) gave information as to the extent that each program meets the criteria for an eligible training program; and

(iii) identified specific arrangements for the assessment and review of the employer's training to determine its impact on the performance of workers and its relevance to the organisational goals of the employer;

(c) the plan:

(i) indicated the training priorities for particular groups in the employer's work force; and

(ii) had regard to the training needs of employees who were disadvantaged in any way including women, disabled employees, low-skilled employees, Aboriginal employees and Torres Strait Islander employees; and

(d) the employer can demonstrate that there was consultation with employee representatives before the plan was approved and implemented.

Certificate of compliance as to level of expenditure

9. (1) A certificate of compliance as to the level of expenditure must:

(a) state that the expenditure by the employer on eligible training programs identified for the purposes of paragraph 8 (1) (c) equals or exceeds the amount specified in subregulation (2); and

(b) be signed by a registered company auditor.

(2) The eligible training expenditure of the employer must be an amount that is not less than 5% of the annual national payroll of the employer in the reference year.

Employer to authorise Department to inform the Commissioner of Taxation

10. (1) An applicant employer must give the Department an authorisation to inform the Commissioner for Taxation that the employer:

(a) has applied for EOT status; and

(b) has been granted EOT status; and

(c) if applicable, has had the status revoked.

(2) The authorisation must give sufficient information for the Commissioner to identify clearly:

(a) the employer in the Commissioner's records; and

(b) in the case of a business group—each corporation that is party to an election under regulation 6.

Who may make decisions about outstanding trainer status

11. (1) The Minister may make decisions about EOT status and to revoke a decision about EOT status.

(2) The person holding or performing the duties of each of the following offices in the Department may make decisions about EOT status:

(a) First Assistant Secretary, Vocational Education and Training Division;

(b) Principal Adviser, Vocational Education and Training Division;

(c) Assistant Secretary, Training Guarantee Unit.

 

(3) The person holding or performing the duties of each of the following offices in the Department may revoke a decision about EOT status:

(a) First Assistant Secretary, Vocational Education and Training Division;

(b) Principal Adviser, Vocational Education and Training Division;

(c) Assistant Secretary, Training Guarantee Unit.

By when does a decision have to be made?

12. (1) A decision maker must decide within 60 days after an application is lodged whether to grant EOT status to an applicant.

(2) An applicant must be notified in writing of the decision made in relation to an application as soon as practicable after the decision is made.

Effect of decisions

13. If a decision maker grants an employer EOT status, the employer is taken to be an eligible outstanding trainer for the 3 year period beginning at the beginning of the nominated year.

Publication of decision

14. A decision maker may publicly announce that an employer has been granted EOT status.

Change in circumstances

15. A chief officer must notify the Secretary to the Department if there is a change in the circumstances of the employer within 30 days of the change.

Penalty: $500.

Employer may be asked why outstanding trainer status should continue

16.(1) A decision maker may:

(a) after receiving a notice under regulation 15; or

(b) of his or her own motion;

request an employer to show cause why the employer should continue to have EOT status.

(2) A request may be made at any time during the exemption period.

(3) A request must be in writing.

(4) An employer must reply to a request not later than 30 days after the date of the request.

Penalty for an offence against subregulation (4): $500.

Revocation of decision to grant employer EOT status

17.(1) If:

(a) an employer notifies of a change in circumstances under regulation 15; and

(b) a decision maker asks the employer to show cause under regulation 16; and

(c) the employer:

(i) replies to a request under regulation 16; or

(ii) has not replied to a request under regulation 16; and

(d) the decision maker decides that the employer should not continue to have EOT status;

the decision maker may revoke a decision to grant the employer EOT status.

(2) If:

(a) a decision maker asks an employer to show cause under regulation 16; and

(b) the employer:

(i) replies to the request; or

(ii) has not replied to the request; and

 

(c) the decision maker decides that the employer should not continue to have EOT status;

the decision maker may revoke a decision to grant the employer EOT status.

(3) A revocation under subregulation (1) or (2) must be made not later than:

(a) 30 days after the receipt of a reply to a request under regulation 16; or

(b) if no reply is received—35 days after the expiry of the time specified in subregulation 16 (4).

(4) If:

(a) an employer notifies of a change of circumstances under regulation 15; and

(b) the decision maker decides not to ask the employer to show cause under regulation 16;

the decision maker may revoke a decision to grant the employer EOT status.

(5) A revocation under subregulation (4) must be made not later than 30 days after the receipt of the notice.

(6) A revocation may be expressed to take effect:

(a) immediately; or

(b) from a later date specified in the revocation.

(7) An employer must be notified in writing as soon as practicable of the revocation and the reasons for the revocation.

Review of decisions

18. (1) Application may be made to the Administrative Appeals Tribunal for the review of a decision:

(a) to refuse to grant an employer EOT status under subregulation 12 (1); or

(b) to revoke a decision to grant an employer outstanding trainer status under subregulation 17 (1), (2) or (4); or

(c) under paragraph 17 (4) (b) to not ask an employer to show cause under regulation 16.

(2) A notice given under regulation 12 or 17 in relation to the decision must include a statement to the effect that:

(a) subject to the Administrative Appeals Tribunal Act 1975, an application may be made to the Administrative Appeals Tribunal for a review of the decision to which the notice relates; and

(b) a person whose interests are affected by the decision may request a statement under section 28 of that Act.

(3) A failure to comply with subregulation (2) in relation to a decision does not affect the validity of the decision.

NOTE

1. Notified in the Commonwealth of Australia Gazette