New Entrant and Existing Worker Traineeship Requirements
Issued: 31 July 2019
Pursuant to Divisions 2 and 5 of the Apprenticeship and Traineeship Act 2001 (A&T Act), the following Guideline is issued in relation to new entrant and existing worker traineeships in NSW.
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.
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.
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 employment (or equivalent) equates to 4 weeks part-time OR 2 months of full-time employment (or equivalent) 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.
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.
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 any employment with the traineeship employer prior to any break of less than 6 months, should be calculated by adding that employment to any subsequent employment, up to the traineeship commencement date.
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.
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.
The principle of 'carriage of benefit' applies when determining whether a traineeship employer is the same legal employer as a previous employer.
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 (ie. the employee would be an existing worker trainee).
If a business changes hands, the retention of entitlements by an employee (from the previous contract of employment) in the new employment arrangements, would be a significant indicator that there has not been a break in employment arrangements (ie. the employee would be an existing worker trainee).
A school-leaver is defined as a person who attended a school, TAFE Institute or other educational institution full-time within the last 12 months for the purpose of undertaking a course of study that meet the requirements of the NSW Education Standards Authority, 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.
A school leaver who completed a full program of studies for that calendar year is considered to have left school at 31 December.
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 equivalent) or 12 months part-time/casual (or equivalent) since leaving school.
Apprentices or new entrant trainees, who have either recently completed or cancelled 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; and
- the commencement date of the traineeship is within 3 months of the date on which the previous apprenticeship or traineeship was completed/cancelled; and
- the Training Contract is lodged within 28 days of the commencement date or in accordance with late lodgement policy and procedures as appropriate; and
- the learner has not already commenced a total of 4 apprenticeships or new entrant traineeships with the SAME employer.
Where a person is not eligible to be classified as a new entrant trainee, but still wishes to undertake a traineeship, they will be classified as an existing worker (EW) trainee.
Provisions for traineeships under the A&T Act also apply to EW traineeships, with the exception of the following:
- The conditions of employment of a person who becomes an existing worker trainee (including conditions with respect to superannuation, accrual of leave and other entitlements) are unaffected by the establishment of the traineeship.
- When an employment arrangement between an employer and an EW trainee is terminated, the parties are not required to seek cancellation of the training contract under s22 of the A&T Act. An EW traineeship can be cancelled on the advice or either party.
- Section 39(3) of the A&T Act, which provides for complaints to the Commissioner in the event of non-consent to a proposed cancellation, does not apply.
- Section 15 of the A&T Act, which requires employers to notify the Commissioner of certain matters within 14 days, will apply to instances where an EW trainee resigns or is dismissed.