ALERT DIGEST 7 of 1994
Part 2
VOCATIONAL EDUCATION AND TRAINING (AMENDMENT) BILL
2.1
This Bill was introduced into the Legislative Assembly on 27 April 1994 by The Honourable Don Hayward with The Honourable Phil Gude.
2.2
This Bill amends the Vocational Education and Training Act 1990. Its purposes are to:-
- reform organisational and accountability arrangements in the State training system and;
- implement the agreement to establish a national vocational education and training system and;
- makes miscellaneous amendments to various other Acts.
2.3 Co-ordination of State training system
Clause 2 is the commencement provision. The Committee commends the forced commencement procedure.
Clause 7 broadens the functions of the Board.
2.4 Section 4D(a)(ii) and (iii) - Makes rights, freedoms or obligations dependent upon insufficiently defined powers or makes rights, freedoms or obligations dependent upon non-reviewable decisions.
Part 2 deals with the co-ordination of the state training system. Clause 5 amends section 5 of the Act. Section 5 provides that the Minister may issue written guidelines. Clause 5 deletes the requirement for the Minister to consult with the other Ministers who administer the Post-Secondary Education Act 1978 and the Education Act 1958. It also allows Ministerial guidelines to confer administrative discretions. The guidelines may be issued so as to require a matter "to be approved by or to the satisfaction of a specified person or body or a specified class of persons or bodies".
Clause 6 amends section 6 of the Act which relates to Ministerial directions. Clause 6 extends the Minister's power to give directions to the TAFE divisions of universities. Sub-clause (2) provides that the Minister may give directions which confer administrative discretions which apply to TAFE Colleges and industry training boards.
The Committee wrote to the Minister on 3 May 1994 with some concerns in respect of Sections 4D(a)(ii) and(iii) of the Parliamentary Committees Act 1968. The Minister responded by way of letter. The relevant extracts are set out: -
"Clauses 5 and 6 of the Bill amend sections 5 and 6 of the Bill respectively.
Section 5 of the Principal Act enables the Minister to "issue written guidelines on any matter relating to vocational education and training in Victoria." Section 6 of the Act empowers the Minister to give written directions to the Council of a TAFE College or an Industry Training Board on the administrative matters and system co-ordination issues specified in that section.
By section 7 of the Act, Colleges and Industry Training Boards are required to comply with Ministerial guidelines and directions. This will be extended to University TAFE Divisions which operate as part of the State Training System in much the same way as TAFE Colleges.
The purpose of guidelines and directions is to establish policy and administration and co-ordination frameworks for the State Training System.
Guidelines and directions are not legislative in nature but are the mechanism by which Government education and training policies and management instructions are conveyed to institutions for implementation. For many issues, it is not feasible to devise rules which can be applied to all circumstances which arise. It is necessary for these matters to be decided on a case by case basis. Further, Universities, TAFE Colleges and industry training boards are self-governing bodies and it is necessary that the policy and management frameworks established by guidelines and directions leave them sufficient latitude to determine policies and priorities within their own areas of operation.
As currently worded, sections 5 and 6 do not authorise the Minister to allow some management discretion in the application of the guidelines and directions. The purpose of the proposed new sections 5(2) and 6(3) is to overcome this deficiency.
Some examples may illustrate the need for administrative discretions.
Currently, there are several Directions under section 6. One of these deals with fees and charges to be collected by TAFE Colleges for publicly funded programs. This Direction provides for concessions or exemptions from fees for specified groups, such as the recipients of certain social security benefits as listed in the Direction. In addition, however, each Council is given the discretion to "grant a concession on a tuition fee where the Council considers that its collection in full would impose extreme hardship". It is not possible to define exhaustively in the Directions all of the circumstances which may constitute "extreme hardship".
At the present time there are no guidelines under section 5. Guidelines may deal with educational issues in the strict sense, whereas directions deal with matters of institutional administration. It may be necessary to issue a guideline to Colleges and Universities on the implementation of "dual recognition", that is, the crediting of studies in secondary schools towards TAFE qualifications. While such a guideline could lay down the general principles and framework for dual recognition, educational institutions may need some discretion to determine the precise extent of the credit to be given.
I trust this satisfactorily explains the need for the provision."
The Committee thanks the Minister for his response.
2.5 ¯ ANTA agreement - Australian National Training Authority agreement
Part 3 implements the Australian National Training Authority ("ANTA") agreement which is an agreement entered into between the Commonwealth, State and Territory governments to establish a National Vocational Education and Training System.
Clause 8 provides that the State Training Board is Victoria's state training agency for the purposes of the ANTA agreement. Its primary role is to provide advice to the government and ANTA on vocational education and training.
The Committee makes no further comment.
2.6 ¯ State Training Board
Part 4 deals with the membership of the State Training Board.
Clause 13 provides that there are to be no more than 6 members of the Board who are appointed by the Governor-in-Council. The previous Board had 15 members. On the commencement of the section, the old members of the State Training Board go out of office. The Committee notes the comments in the Second Reading Speech: -
"The State Training Board will be restructured and its functions will be altered. In the Government's view, the Board should consist of a small, high-level group of individuals chosen for their expertise in industry and training rather than a large number of members selected as representatives or delegates of interest groups. The Board will have six members.
The Board's primary role is to provide expert advice to Government on vocational education and training. Its membership must reflect this. The Government considers the key to a successful and effective training system is the continuing development of a strong partnership with Industry. In selecting Board members, the Government will ensure that the Board includes members with significant industry experience.
It is also important that the Board will have a good understanding of TAFE College governance and operations. Therefore, in choosing Board members, the Government will consider views of key stakeholders in the State Training System."
The Committee makes no further comment.
2.7 ¯ Staff and delegations
Clause 17 inserts a new section 20 and 20A. Section 20 provides for delegation of some powers. Clause 17 provides that any power or function of the Board may be delegated by instrument to specified councils or boards. Sub-clause (2) of the new 20 provides that the Board may by instrument delegate to a further education accreditation board, any power or function of the Board under section 74. Sub-clause (3) provides that the Minister may by instrument delegated specified powers to specified boards and councils. Sub-clause (4) provides that the Director may by instrument delegate any power or functions to specified councils. officers or boards.
The Committee notes that the powers to be delegated are specified or the persons or boards to whom they are to be delegated are specified and makes no further comment.
2.8 ¯ TAFE Colleges and TAFE divisions
Part 6 deals with TAFE colleges and TAFE divisions.
Clause 19 amends section 28 which deals with members of councils. It provides that the members of college councils will be appointed by Order in Council. There will be no less than 9 but no more than 15 members. Previously there were no less than 12 but no more than 20 members. The Minister must review Orders in Council establishing College Councils within 12 months of the commencement of the section. A person who was a member of the Council of a TAFE College immediately before the commencement of the section, continues to be a member until the council is remade. The Committee notes the comments in the Second Reading Notes: -
"The Bill restructures College Councils. They will be reconstituted in line with current business practices. Councils will have fewer members but these members will be selected for their management and professional expertise. They will not be appointed as representatives of special interest groups but persons with experience in industry, further education and local communities will be appointed because of their expertise in those areas.
The Bill acknowledges that Councils are responsible for the management of their colleges. In future, delegations to colleges must be issued to councils, not their staff. Councils can then determine whether to delegate the functions to the staff."
The Committee makes no further comment.
2.9 ¯ Industry Training Boards
Part 7 deals with Industry Training Boards.
Clause 27 alters the requirements for the composition of industry training boards. It amends old section 38 which sets out the composition of industry training boards. The Committee notes the comments in the Second Reading Notes: -
"The membership will have to include persons from both employer and employee backgrounds, the Bill deletes the rigid "tripartism" formula which requires all boards to have a balance of representatives of unions, employer' associations and government. In the government's view, members should be chosen for their expertise and ability to contribute, not as delegates of interest groups."
Clause 28 amends the functions of the industry training boards.
The Committee makes no further comment.
2.10 ¯ Vocational Training
Part 8 deals with vocational training.
Clause 30 substitutes a new section 51 into the Act which allows the Board to approve training schemes for vocations. This brings the terminology into line with new national standards in training. Clause 34 amends section 64 which provides that the Board may determine grievances in certain instances. The clause extends the jurisdiction of the State Training Board to determine matters of unfair dismissal
The Committee makes no further comment.
2.11 ¯ Membership and meeting procedures
Part 9 deals with the membership and meeting procedures of TAFE College Councils.
The Committee makes no further comment.
2.12 ¯ Defence force training
Part 10 relates to defence force training. The new division 5 enables the State Training Board to recognise education and training conducted by the Defence Force and will recognise Defence Force training institutions such as the Army College of TAFE.
The Committee makes no further comment.
2.13 ¯ Accreditation
Part 11 brings various provisions of the current Act into line with national standards for accreditation. These standards have been agreed to by the State and Federal governments.
The Committee makes no further comment.
2.14 ¯ Further Education Courses - approval to deliver accredited courses
Part 12 relates to further education courses. The effect of clauses 57 and 58 is to allow community-based providers of further education courses to deliver accredited courses. These course must be registered by the Adult, Community and Further Education Board. The decision of the Board not to register a person or a body may be reviewed by the Administrative Appeals Tribunal. The Board must maintain a register of providers of further education. In accordance with section 80 of the Principal Act, it is an offence to imply that the course is registered when in fact it is not. Clause 51 brings those community-based providers of further education courses within section 80. Clause 52 empowers the State Training Board to register providers of further education courses other than community providers. For example, commercial providers (ie: private institutions run for profit) and industry providers (employers which conduct courses for their staff) would be registered by the State Training Board.
The Committee makes no further comment.
2.15 ¯ Practical Placement
Part 13 relates to the practical placement of students. It substitutes a new part 7 into the Act relating to the circumstances in and conditions on which TAFE students may be placed with employers for general work experience or to receive on-the-job training in their field of study.
The Committee makes no further comment.
2.16 ¯ Enforcement - Powers of authorised officers
Part 14 relates to penalties. Clauses 69 and 70 increase various existing penalties from 10 to 40 units in the case of a natural person and from 50 to 200 units in the case of a body corporate. The Committee notes that the increase in penalty levels brings this Act in line with the Tertiary Education Act.
Clause 71 inserts new sections 91B, 91C and 91D into the Act. It also repeals the old section 71 which contained powers of entry and examination. The new sections provides that authorised officers, may enter premises during ordinary working hours on the production of his or her identification card. The authorised officers may require the production of any documents relating to the employment of any trainee, inspect and examine them and take copies of them. These powers are similar to the powers set out in the old section 71 which is repealed. The old powers applied only to the employers of apprentices, whereas the new powers also cover providers of training registered under sections 81 and 85. The old section 71 included a power for inspectors to require certain persons to answer questions and to require them to make statutory declarations about matters under investigation.
Clause 72 sets out the offences by corporations of the Act.
Clause 73 inserts a new section 94A which provides that the Board may charge a fee determined by the Minister for the issue of a certificate. It also repeals the requirement for the Board to consult with the relevant industry training board when it is to make a determination in respect of whether a specified training program is an approved training program.
The Committee makes no further comment.
2.17 ¯ Gordon Technical College
Part 15 deals with Gordon Technical College.
Clause 74 repeals the Gordon Technical College Act 1976. It also provides that the Gordon Technical College continues to be a TAFE College.
The Committee makes no further comment.
2.18 ¯ Miscellaneous provisions
Part 16 deals with various miscellaneous provisions.
The Committee makes no further comment.
2.19 ¯ Supreme Court - Limitation of jurisdiction (section 4D(b)(i) and (ii) of the Parliamentary Committees Act 1968)
Clause 61 of the Bill proposes to insert a new section 93A which declares its intention to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the bringing before the Supreme Court, an action of the kind referred to in section 91A.
Clause 59 of the Bill inserts a new section 91A into the Vocational Education and Training Act 1990. New section 91A provides that no action lies against any person for any breach of any duty of care whilst that student is employed under and agreement or practical placement arrangement. The Committee notes the comments in the Second Reading Speech: -
"The reason for prevention of the bringing of such an action is that it is impossible for college staff to exercise effective supervision of a student while that student is working in accordance with a placement arrangement. In effect, that student is working in an employment situation under the supervision of the employer with whom the student is placed. The rights of the students to compensation for work-related injuries in relation to placements are adequately protected because they are deemed to be workers for the purposes of the Accident Compensation Act 1985 by the definition of "worker" in section 5(1) of that Act."
The Committee reports that the proposed provision is appropriate and desirable in all the circumstances.
