Campus Review Vol 29. Issue 6 June 2019 | Seite 26

VET & TAFE
for training remain the realm of states and territories. The following
illustrates legal complexity in how federated cooperation finds ways
to synchronise domains:
What the Commonwealth has not – or at least not yet –
attempted to do is to take over complete responsibility for
regulating training. Most of its subsidies to employers are made
conditional on the making of a formal training contract. This
must be registered with the relevant state or territory training
authority [under their terms of the legislation], rather than
having to conform to separate federal requirements.
Section 27(2)(f) of the Fair Work Act confirms that state or
territory training laws can apply to national system employers.
To avoid any doubt, the Fair Work Regulations disclaim
any intention to override laws dealing with the suspension,
cancellation or termination of a training contract, or with a
probationary period in a training arrangement (reg 1.13). But
training laws cannot regulate employment conditions that are
covered by the National Employment Standards [derived from
this Act], or that can be included in an award (reg 1.14).
(Stewart’s Guide to Employment Law 6th Ed)
States and territories historically committed to ‘harmonise’ (not
‘mirror legislate’) to best eliminate differences in the detail of their
apprentice training contracts, policies and practices. This process
was agreed within Schedule 1 of National Partnership on Skills
Reform. It covered a myriad of details but outcomes were not
reported on in the NP review.
Legislatively states and territories retain the right to make decisions
on what occupations can be ‘declared’ as being appropriate to an
apprenticeship or traineeship. There is largely conformity across
jurisdictions, but by no means national uniformity. Recent data
shows that of the 1414 apprenticeship and traineeship qualifications
recorded, 110 are classified as traditional apprenticeships, 1197
as traineeships and there are mixed views among the states and
territories on the remaining 107 qualifications. This extent of non-
conformity is likely diminishing. There are examples of classification
differences apprenticeship versus traineeship across the same
training package qualifications and variance in nominal full-time
durations. These differences either respect regional economic
interests and jurisdictional funding preferences, or alternatively argue
the need to create a single national system that meets the needs of
employers and students.
The Commonwealth seems not to have expressed any view
of its constitutional powers in this area. There is an untested and
hypothetical argument that a large majority of present employers
of apprentices and trainees would be deemed owners/managers of
companies that are ‘constitutional corporations’. 2 Such employers,
when in benefit of ‘on job’ Commonwealth incentives, plus
system support and all non-training benefits (about $600 million
Commonwealth funding annually), might be argued as within
reach of the Commonwealth’s corporations powers for not only
apprentice employment, but also by extension associated training,
given most RTOs exist and operate under Commonwealth law.
But the present law is unambiguous in the referral ‘carve out’, as
reflected in the Fair Work Act expressed above.
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cooperation’. This includes three aspects in particular: advice on jobs
demand and skills supply; creating contemporary training products
(courses and qualifications) to train students via outputs of quality
RTOs; and public (student and employer) VET information systems
and career advice.
The propositions of the Joyce Review and the budget decision,
in summary, is to sweep up almost all of the above functions under
an overarching umbrella of a new National Skills Commission that
will also be charged to develop efficient pricing for training, oversee
new skills organisations so industry leads development of VET
qualifications and training products, and host a National Careers
Institute, supported by the VET information strategy. Initial expertise
is proposed to be aggregated capability from Commonwealth
departments.
The history of VET shows variants of these vital ‘cogs’ get
‘plugged in and out’. In ‘Common Cause: Strengthening Australia’s
Cooperative Federalism’, the Australian National Training Authority
(ANTA) was written up as a positive case study.
ANTA was abolished in 2005 and much of its functions swung
back under the then Commonwealth department. Under a
new government in 2007, independent VET advisory functions,
in particular future workforce skills, were peeled off into a new
legislated agency, Skills Australia, in 2008, and this evolved by
legislative amendments into the Australian Workforce Productivity
Agency, which was closed in 2014. And functions then swung
back again into the department. Along the way smaller connecting
incidental cogs (e.g. Group Training Organisations, Industry Skills
Councils, and perhaps now the Australian Industry and Skills
Committee and Skills Service Organisations) tend to get ‘retooled
and replaced’.
The Commonwealth will in time provide greater detail, following
consultation and working with states, as to the scope, functions,
governance and authority of the proposed National Skills
Commission. The limited description of its functions suggests its
size and shadow will be similar to ANTA’s, though its ‘foot print’ may
slightly differ. Early critique suggests funding may have been better
prioritised for training over building a new central bureaucracy.
CONCLUSIONS
Taken as a whole, if all the Joyce proposals adopted by government
eventuate by implementing the full road map, it represents a very
profound repositioning of federated cooperation in VET. This may be
seen by some as an opportunity and by others as a loss.
So whoever gets a call-up ‘into the mob’ and is asked to steer
VET’s future path, it is as well they start by absorbing The Future of
Federalism: The Incredible Shrinking Federation Voyage to a Singular
State? by Justice Robert French. It is an educative and pertinent read.
Learning from history means that successful examples of reform
in ‘federated cooperation’ must ideally both balance and also score
high on all its principles of subsidiarity, national uniformity and
comity, underpinned by practical legal certainty.
And ultimately it’s not about governments – it’s about students,
employers, jobs and national productivity. ■
COOPERATIVE VET SYSTEM ‘COGS’ Dr Craig Fowler is an analyst and observer of national policies
impacting tertiary education, science and innovation after
decades of experience in private, public and university sectors.
The VET sector has a number of valuable and indeed essential
‘system cogs’ that play a vital and constructive part in ‘federated References at www.campusreview.com.au
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