Apprenticeship and traineeship applications - Approval Requirements

Issued: 8 July 2009

Updated: 24 October 2016


1. Discretion of Commissioner to approve or dismiss applications for apprenticeships and traineeships

Notwithstanding anything in these guidelines, the Commissioner, or any persons delegated by the Commissioner to exercise his or her functions under the Apprenticeship and Traineeship Act 2001, may assess an application to establish an apprenticeship or traineeship on its merits and may approve or dismiss an application, or refer it to the Vocational Training Review Panel (VTRP) for approval or dismissal.

2. Apprenticeship and Traineeship Eligibility Criteria

2.1 Citizenship and residency status

A person is eligible to be approved as an apprentice or trainee in NSW if they are:

  • an Australian citizen, or
  • a foreign national with permanent residency, or
  • a New Zealand passport holder who has been 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, providing that that the visa is valid beyond the nominal term of the training contract.

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 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 achieved.

A person who has completed a trade qualification or other qualification relevant to an apprenticeship, and who has significant practical experience working in the trade, should be encouraged to apply to the VTRP for trade skills recognition rather than apply for an apprenticeship.

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
  • (for workers who work at various sites in NSW and interstate) the employer's depot or home base is in NSW, or
  • (for workers employed by Group Training Organisations) the first host employer is based in NSW

2.4 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 with the employer (the "training contract")
  • 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 Apprenticeship and Traineeship Act, 2001

2.4.1 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.

2.4.2 Parties able to enter into a training contract

Subject to the provisions of s2.4.3 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

2.4.3 Potential conflict of interest

Notwithstanding s2.4.2 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 Apprenticeship and Traineeship Act, 2001.

Where a potential conflict of interest is identified, the Commissioner will assess each application in 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 (NE) trainee eligibility requirements

New entrant eligibility requirements relate to traineeships only. Eligibility for new entrant trainee status relates to a person's employment history with their traineeship employer. The requirements detailed below apply equally to Group Training Organisations as to other employers.

3.1 NE traineeship eligibility - general rule

A person is eligible to be approved as a new entrant trainee if they have been employed by their traineeship employer:

  • for less than 3 months as a full-time, full-time equivalent part-time/casual, or a combination of these prior to the commencement of the traineeship
  • for less than 12 months as a part-time or part-time equivalent casual employee prior to the commencement of the traineeship
  • for less than 12 months in a combination of part-time, casual and full-time (or equivalent) employment prior to the commencement of the traineeship

NB 1: Periods of part-time or casual employment where the learner is working 30 or more hours a week should be considered full-time "equivalent" for the purpose of these calculations. (Note: that implementation of this new criteria will become effective for all TCs lodged from 28 November 2016).

NB 2: When determining compliance under dot point 3, periods of full-time or full-time equivalent part-time/casual employment should be converted to part-time using a ratio of 1:4. For example, 1 week of full-time (or equivalent) employment equates to 4 weeks part-time OR 2 months of full-time (or equivalent) employment equates to 8 months part-time.

NB 3: A person who commences a School-Based Traineeship is deemed a new entrant trainee, regardless of how long they were employed by the same employer prior to commencing the traineeship.

3.2 NE traineeship eligibility - breaks in employment of more than 6 months

In assessing NE eligibility under the general rule, any previous employment with the traineeship employer should be disregarded if it occurred prior to a period of at least 6 months during which the applicant was not employed by that employer.

3.3 NE traineeship eligibility - breaks in employment of less than 6 months

In assessing NE eligibility under the general rule, breaks of employment of less than 6 months should not be taken into account. The number of months of full-time, part-time or casual employment with the traineeship employer should be calculated by adding employment prior to any break of employment of less than 6 months to any subsequent employment after the break of employment, up to the traineeship commencement date.

3.4 NE traineeship eligibility - recommencing trainees

In assessing new entrant eligibility under the general rule, any previous employment with the traineeship employer is to be disregarded if it occurred as part of a registered apprenticeship or traineeship.

3.5 NE traineeship eligibility - GTOs, labour hire companies (LHC) and host employers

Where a person is to be employed as a trainee by a GTO or LHC and placed with a host employer for whom they have previously worked, their eligibility to be approved as a new entrant trainee will be assessed as if they were to be employed directly by that host employer.

Similarly, where a person is to be employed directly by an employer with whom they were previously hosted when employed by a GTO or LHC, their eligibility to be approved as a new entrant trainee will be assessed as if they had been employed directly by that host employer for the entire period of their placement with that host employer by the GTO or LHC.

3.6 NE traineeship eligibility - change of ownership

In determining whether the traineeship employer is the same legal employer as a previous employer, the principle of "carriage of benefit" as set out in the Advice and Instructions item Existing Worker Trainee - Definition (21/12/01) is to apply. If an employee's accrued entitlements are transferred directly from one employer to the next without having been paid out, the employee is considered to have been continuously employed by that business for the purposes of assessing eligibility for new entrant status.

3.7 NE traineeship eligibility - school leavers

3.7.1 School leavers - definition

A school-leaver is defined as a person who attended a school, TAFE college or other educational institution full-time within the last twelve months for the purpose of undertaking a course of study that meets the requirements of the NSW Board of Studies, such as the School Certificate, Higher School Certificate, Tertiary Preparation Certificate or International Baccalaureate.

A school leaver includes a person who has completed a school-based traineeship.

A person who completed a part-time traineeship while they were a school student is also considered to be a school leaver. However, a person who commenced a part-time traineeship while they were a full-time school student but completed that traineeship after 31 December of their last year of full-time school study is not considered to be a school-leaver for the purposes of establishing new entrant status. Eligibility for new entrant status for these people should be considered under s3.9 of these approval requirements.

A school leaver who completed a full program of studies for that calendar year is considered to have left school at 31 December.

3.7.2 School leavers - eligibility to undertake traineeships as a new entrant

A school leaver is eligible to be approved as a new entrant trainee if they have worked for their current employer for less than 3 months full-time or 12 months part-time or casually since leaving school.

3.8 NE traineeship eligibility - CDEP employment

Previous employment as a CDEP participant is to be disregarded for the purpose of establishing eligibility as a new entrant trainee under the general rule.

3.9 Progression from apprenticeship/traineeship to a traineeship with the same employer

Apprentices or new entrant trainees who have successfully completed an apprenticeship or traineeship may be classified as a new entrant trainee when progressing to a traineeship with the same employer providing that:

  • the learner is eligible to undertake the nominated traineeship (see section 2); AND
  • the commencement date of the traineeship is within three months of the date on which the previous apprenticeship or traineeship was successfully completed; AND
  • the TC is lodged within 28 days of the TC commencement or in accordance with late lodgement policy and procedures as appropriate; AND
  • the learner has not already completed (ie. TC status of Craft, Complete or Certificate of Proficiency) a total of four apprenticeships or new entrant traineeships with the same employer.

4. Compliance with Vocational Training Guidelines (VTGs) and Vocational Training Orders (VTOs)

An application to establish an apprenticeship or traineeship must comply with the requirements of any relevant Policy & Procedures or Vocational Training Guideline, as well as the Vocational Training Order 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.

5. Training Plans

A Training Plan Proposal (TPP), endorsed by the Registered Training Organisation (RTO), must be prepared and lodged with the apprenticeship or traineeship application. RTOs are required to develop a Training Plan in consultation with the parties within 12 weeks of approval of the training contract. For school-based apprenticeships and traineeships, a Training Plan must be lodged with the training contract under ANP (AAC) Pending arrangements.

6. Late applications

Under s8(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. Further information about late applications, including documentation requirements, are set out in an Advice and Instructions item Late Lodged Training Contracts, issued 25/10/06.

7. 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. In these instances eligibility for Commonwealth or NSW government funding is restricted to the first training contract.

For further information see the Advice and Instructions item Concurrent Training Contracts, issued 5/3/03 and updated 18/1/2010.

8. Coverage under an appropriate industrial award or agreement

8.1 General

Section 7(3) (b) of the A&T Act provides that an application to establish an apprenticeship or traineeship must identify the industrial award or agreement under which the apprentice or trainee will be employed.

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 Fair Work Australia.

Employers have a responsibility to ensure that the industrial award or agreement nominated by them is appropriate for their workplace. If necessary they should seek advice from the relevant industrial authority or their industry association.

8.2 Casual employees offered positions as part-time apprentices or trainees

Under the A&T Act there is no category of "casual" apprentice or trainee. Employers of casual employees who offer their employees a part-time or full-time apprenticeship or traineeship must agree to change the employment arrangements of those workers from casual to part-time/full-time and must meet commitments such as pay rates, leave entitlements and other conditions of employment that apply to part-time/full-time workers under the relevant award or agreement.

The training obligations of all employers, including employers of part-time apprentices and trainees, include the requirements for the employer to:

  • obtain the consent of the trainee to any request for cancellation, suspension or transfer
  • allocate paid work time for formal training and liaise with the RTO in developing and implementing the training plan
  • provide regular work that meets the minimum average hours requirement as specified in the Vocational Training Order.

For more information about minimum hours see Part time apprenticeships and traineeships.

9. Applications for trainee apprenticeships

An application for a trainee apprenticeship can only be approved if the Commissioner is satisfied that there is appropriate industrial coverage. In relation to trainee apprenticeship applications, this means that the nominated industrial award or agreement must specify pay rates for trainee apprentices.

Even if there is appropriate industrial coverage, an application for a trainee apprenticeship may be dismissed under s9 of the A&T Act if the Commissioner considers that it is inappropriate in the circumstances.

10. Employers' capacity to train

In assessing applications to establish an apprenticeship or traineeship, the Commissioner for Vocational Training must be satisfied that an employer has the capacity to provide the work-based training in the relevant vocation (s9, A&T Act).

This assessment takes into consideration:

  • facilities and equipment
  • range of work
  • qualified and/or experienced supervisors

10.1 Facilities and equipment

The workplace must have facilities and equipment that will allow the apprentice or trainee to develop the competencies required for this vocation. Where the workplace does not have a sufficient range of facilities or equipment, an apprenticeship or traineeship will only be approved if the assessing officer is satisfied that the employer has put in place appropriately-managed hosting arrangements to supplement the apprentice or trainee's on-the-job training.

10.2 Range of work

The employer must be able to provide work-based training to the apprentice or trainee across the range of competencies relevant to the vocation as identified in the Training Plan. 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 arrangements to supplement the apprentice's or trainee's on-the-job training so that the full range of competencies are covered.

10.3 Qualified and/or experienced supervisors

Specific supervision requirements are not identified in the A&T Act. Some industrial awards or agreements do 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.

Apprentices are to be supervised and trained on-the-job by qualified tradespeople. The A&T Act defines a qualified tradesperson as:

(a) a person who has a Craft Certificate or Certificate of Proficiency for that vocation, or

(b) a person who has qualifications and experience that ... entitle the person to a Craft Certificate or Certificate of Proficiency for that vocation.

As the on-the-job supervision and training arrangements will vary from one industry to another, and between workplaces even within the same industry, each application will be considered on its merits. However the following considerations will be taken into account when assessing an application for an apprenticeship or traineeship:

  • Is there a person or persons with the appropriate skills and experience nominated by the employer to supervise the apprentice or trainee and facilitate their on-the-job training?
  • Is the level of workplace supervision sufficient to ensure the health, safety and welfare of the apprentice or trainee?
  • Are there arrangements in place to monitor the apprentice or trainee's progress in learning the skills of their vocation, to provide feedback to the apprentice or trainee and to 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.

11. Employers' commitment to meeting training obligations

The Commissioner must be satisfied that the employer has the capacity and commitment to meet their obligations under sections 13 & 14 of the A&T Act.

Section 13 states that an employer must take all reasonable steps to:

  • ensure that the apprentice or trainee receives the work-based component of the training
  • enable the apprentice or trainee to gain the appropriate qualification by releasing them for formal training and liaising with the RTO in relation to the apprentice or trainee's attendance or participation in formal training
  • discharge his or her general obligations as an employer

Section 14 sets out the duties of employers using host employment arrangements.

In assessing an application to establish an apprenticeship or traineeship, an employer's previous record in training apprentices and trainees and in meeting these obligations may be taken into account.

11.1 On-the-job training

See section 10, above.

11.2 Employer support for formal training

Employers have a critical role to play in supporting formal training coordinated by the Registered Training Organisation (RTO). This support will vary according to the vocation and the type of training delivery chosen by the parties and specified in the Training Plan, but may include:

  • releasing the apprentice or trainee in paid work time to attend training delivered by the RTO in the workplace or off-site
  • allowing the apprentice or trainee paid work time to undertake work-based assessment tasks
  • providing support for self-paced on-the-job learning
  • monitoring skill development and noting progress in a competency record book
  • providing other workplace evidence to the RTO to support competency assessment, as specified in the Training Plan

11.3 Employers' legal obligations as an employer

This includes a range of legal obligations, such as the obligation to:

  • comply with NSW or federal industrial law
  • comply with NSW or federal licensing requirements
  • comply with NSW OH&S legislation and provide a safe and harassment-free workplace

Approved by the Commissioner for Vocational Training

07/03/2016

Page last updated: 14 March 2017