1. Discretion of Commissioner to approve or dismiss applications
Notwithstanding anything in this Guideline, the Commissioner, or any persons delegated by the Commissioner to exercise their functions under the A&T Act 2001, may assess an application to establish an apprenticeship or traineeship on its merits and either approve or dismiss the application.
2. Apprenticeship and traineeship eligibility criteria
2.1 Citizenship and residency status
A person is eligible to undertake an apprenticeship or traineeship in NSW if they are:
- an Australian citizen, or
- a foreign national with permanent residency, or
- a New Zealand passport holder who has been a resident in Australia for more than six months, or
- a person who holds a visa that is identified by Training Services NSW as being eligible. For further information, see Citizenship and residency status requirements to undertake apprenticeship or traineeship
2.2 People holding existing qualifications
A person may undertake an apprenticeship or traineeship, whether they:
- have already completed an apprenticeship or traineeship; or
- hold a VET or higher education qualification;
as long as the proposed apprenticeship or traineeship:
- has a different vocational outcome*; or
- where the vocational outcome is the same, is at a higher qualification level than the apprenticeship/traineeship/ qualification already completed.
* For the purpose of determining whether a proposed apprenticeship or traineeship will result in a different vocational outcome, ANPs/staff should review the title and content of the existing qualification, then assess this information against;
- the job role, VTO and qualification/s for the proposed apprenticeship or traineeship contained in the Commissioner Information Bulletin; and
- information contained in the relevant training package.
A person may be considered for an apprenticeship or traineeship where they hold a qualification assessed as leading to the same vocational outcome in instances where:
- the qualification they hold was obtained over 10 years previously; and
- they do not have any recent (last 7 years) relevant industry experience; and
- there has been a significant change in vocational skill sets since the previous qualification was obtained.
A person who has completed an Australian trade qualification, and who has significant practical experience working in the trade, should be encouraged to submit an Application for Certificate of Proficiency (trade recognition) rather than apply for an apprenticeship. For more information, please go to Certificate of Proficiency Guidelines.
An application for an apprenticeship may also be considered where a person holds a trade qualification or other qualification relevant to the trade, but does not have sufficient practical experience working in the trade to support a successful application for trade skills recognition. The Commissioner will consider requests for a reduced apprenticeship term in these circumstances.
2.3 Workplace address
A person is eligible to be registered as an apprentice or trainee in NSW if they are working as an apprentice or trainee and:
- the workplace that is their usual place of work is in NSW, or
- the employer's depot or home base is in NSW (for workers who work at various sites in NSW and interstate), or
- the first host employer is based in NSW (for workers employed by Group Training Organisations).
2.4 Employment status
An apprentice or trainee MUST be employed in either a full-time or part-time (if award allows) capacity for the duration of the apprenticeship or traineeship, and MUST be paid and receive leave entitlements and other conditions of employment available to full-time and part-time apprentices and trainees under the relevant industrial award or agreement.
If an apprentice or trainee is employed in a part-time capacity, the hours worked must comply with the requirements of the relevant Vocational Training Order.
Where an apprentice or trainee was employed on a casual basis directly before the start of an apprenticeship or traineeship, evidence must be provided indicating that the employment status of the apprentice or trainee has been changed to full-time or part-time.
2.5 People in a business relationship with the employer
Two of the requirements that must be satisfied in order for an apprenticeship or traineeship to be established in NSW are:
- the proposed apprentice or trainee must be able to enter into a contractual arrangement (the 'training contract') with the employer; and
- establishment of the training contract should not result in a conflict of interest that impacts on the capacity of the parties to meet their obligations under the training contract, and under the A&T Act, 2001.
2.5.1 Parties NOT able to enter into a training contract
An employer and an apprentice/trainee cannot enter into a training contract unless they are distinct legal entities. Consequently:
- sole traders may not register as an apprentice or trainee with their own business;
- partners in a partnership that is the legal employer cannot be registered as an apprentice or trainee in NSW;
- a person cannot be registered as an apprentice or trainee if the legal employer is a trust and they are the trustee of that trust, or a partner in a partnership that is the trustee of that trust.
2.5.2 Parties able to enter into a training contract
Subject to the provisions of Section 2.5.3 of these Guidelines, a person may be able to undertake an apprenticeship or traineeship if:
- the employer is an incorporated body (such as a proprietary limited company) of which they are a director;
- the employer is a trust, and the trustee is an incorporated body of which they are a director;
- the employer is a proprietary limited company in which they are a shareholder.
2.5.3 Potential conflict of interest
Notwithstanding Section 2.5.2 of these Guidelines, an application to establish an apprenticeship or traineeship may be dismissed if the Commissioner is satisfied that the business relationship between the employer and the proposed apprentice/trainee is such that it may present a conflict of interest that affects the capacity of the parties to meet their obligations under the training contract and the A&T Act, 2001.
Where a potential conflict of interest is identified, the Commissioner will assess each application on its merits in relation to this requirement.
Examples of business relationships that may be considered by the Commissioner to present a significant conflict of interest under the terms of this provision include:
- where the applicant is the sole director of the company that is the legal employer;
- where the applicant is a majority shareholder in the company that is the legal employer;
- where the applicant holds a senior management position within the business that is the legal employer;
- where the applicant is a sole director or majority shareholder, or holds a senior management position within the business that is the host employer.
3. New Entrant and Existing Worker traineeship requirements
An application to establish a "New Entrant" traineeship or an "Existing Worker" traineeship should be in accordance with the definitions and requirements as specified in Policy and Procedure - New Entrant and Existing Worker Traineeship Requirements.
4. Coverage under an appropriate industrial award or agreement
Section 7(3) (b) of the A&T Act states that an application to establish an apprenticeship or traineeship must identify the industrial award or agreement that applies to the apprenticeship or traineeship concerned.
Vocational Training Orders (VTOs) generally include the following requirement:
- Applications under the Apprenticeship and Traineeship Act 2001 to establish any traineeship or apprenticeship will not be approved unless the Commissioner is satisfied that appropriate industrial arrangements are in place.
"Appropriate industrial arrangements" means that the award or agreement is current and is registered with the appropriate industrial authority such as the Fair Work Ombudsman.
The nominated industrial award or agreement must be appropriate for the workplace and the proposed apprenticeship/traineeship.
5. Compliance with Vocational Training Order
An apprenticeship or traineeship must comply with the requirements of the relevant Vocational Training Order (VTO) for that vocation. Applications that specify training arrangements that vary from those specified in the relevant VTO (such as an alternative qualification or a shorter or longer term of training) must be lodged with supporting documentation and will be assessed on their merits. If approved, a Vocational Training Direction will be issued in conjunction with the approval letter.
6. Employer capacity to train (on-the-job training)
Pursuant to Sections 9 and 13 of the A&T Act, an employer must have the capacity to provide the work-based component of the required training in the relevant vocation. This "capacity" includes, but is not limited to appropriate:
- facilities and equipment
- range of work
- qualified and/or experienced and/or licenced supervisors
- previous performance
6.1 Facilities and equipment
The workplace must have facilities and equipment that will allow the apprentice or trainee to develop the competencies required for the vocation. Where the workplace does not have the required facilities or equipment, an apprenticeship or traineeship should only be approved if the employer has put in place appropriate arrangements to allow the apprentice or trainee to obtain sufficient access to necessary facilities and equipment to enable achievement of competence in the vocation.
6.2 Range of work
The employer must be able to provide work-based training across the range of competencies relevant to the approved vocation. Where the employer does not have a sufficient range of work, an apprenticeship or traineeship will only be approved if the assessing officer is satisfied that the employer has put in place appropriate arrangements to allow the apprentice or trainee to obtain sufficient experience and on-the-job training so that the full range of competencies are covered.
6.3 Qualified and/or experienced and/or licenced supervisors
Specific supervisory requirements are not identified in the A&T Act. Some industrial awards or agreements specify ratios of qualified supervisors for each apprentice or trainee. Minimum requirements for supervision in certain industries may also be set by Safework NSW or by industry-specific regulations or licensing arrangements. Employers must comply with these requirements.
6.3.1 Minimum Requirements for Traineeship Supervisor
A workplace supervisor must be someone who is either experienced or qualified, at the same or higher level, in the vocation being undertaken.
6.3.2 Minimum Requirements for Apprenticeship Supervisor
A workplace supervisor must be someone who is trade qualified in the vocation being undertaken. The A&T Act defines a qualified tradesperson as:
(a) a person who has a Certificate of Proficiency for that vocation, or
(b) a person who has qualifications and experience that entitle the person to a Certificate of Proficiency for that vocation.
For regulated trades, the supervisor must also hold a supervisor licence.
6.3.3 Level of Supervision
The following considerations should be taken into account when assessing the level of supervision available for an apprenticeship or traineeship:
- Is the level of supervision sufficient to ensure the health, safety and welfare of the apprentice or trainee?
- Is the level and access to supervision sufficient to provide meaningful on-the-job training, particularly when undertaking complex and high risk activities/vocations
- Is the level of supervision sufficient to adequately monitor the apprentice or trainee's progress and to provide feedback and answer any questions they may have?
- Is there a responsible person in the workplace other than the apprentice or trainee who has the employer's authority to deal with customer complaints, problems or accidents in the workplace?
Supervision and on-the-job training arrangements should take into account the stage the apprentice/trainee is at and their level of knowledge and skills. Where apprentices and trainees are competent in certain areas and do not require supervision to perform specific tasks, employers should ask the RTO to formalise these arrangements through competency assessment.
6.4 Previous Performance
The previous performance of the employer may be taken into account when determining their capacity to train. Previous performance may include:
- Completion rate (completions vs cancellations/expired)
- Number and type of complaints
- Issues/non-compliances identified as a result of Departmental quality assurance activities
- Issues/non-compliance(s) identified as a result of quality assurance activities undertaken by Commonwealth, State and/or Territory Governments.
7. Learners' capacity to undertake training
The learner must have the capacity to undertake the proposed apprenticeship or trainineeship. Issues to be considered here include:
- English language skills
- Literacy and numeracy skills
- Previous performance
8. Concurrent training contracts
There are no restrictions preventing a person from undertaking two or more concurrent apprenticeships or traineeships, providing they can meet their obligations under each.
9. Late Applications
Under Section 8 (3) of the A&T Act, the Commissioner may, but is not required to, deal with applications lodged more than 28 days after the date on which the prospective apprentice or trainee began working for the employer in that capacity.
See Training Contracts - Late Lodged for further information regarding requirements.
10. Prohibited Employer
Applications received from employers who have been identified as "prohibited" under Section 53 of the A&T Act are not to be approved.