Employer Approval Process
The employer approval function
The Victorian Registration and Qualifications Authority (VRQA) regulates the employer approval process for employers of apprentices and trainees in Victoria.
Under section 5.5.6 of the Education and Training Reform Act 2006 (the Act) an employer must have the VRQA’s approval to enter into a training contract with an apprentice or trainee.
Section 5.5.7(2) of the Act specifies four key criteria that the VRQA must take into consideration prior to granting approval to an employer to enter into a training contract with apprentices and trainees.
(a)The premises in which the person is to be employed.
(b)The equipment and methods to be used in training.
(c)Whether any person whom the employer uses or proposes to use for the purpose of supervising the training of an apprentice under a training contract:
(i)has the appropriate qualifications, knowledge and skill for that purpose
(ii)is otherwise a fit and proper person for that purpose.
(d)Whether the employer is a fit and proper person for employing an apprentice.
Section 5.5.7(3) enables the VRQA to place conditions on employers of apprentices, eg limiting the number of apprentices an employer may have, while section 5.5.7(4) enables the VRQA to revoke approval.
Why is the employer approval process important?
Workplaces are often environments where an employer/supervisor(s) and their apprentice/trainees have close, daily contact and an unequal power relationship.
The approval process is intended to ensure that employers are fit and proper persons to employ apprentices/trainees and have appropriate systems and supervisors in place to ensure the apprentice/trainee is provided with appropriate training.
The pre-2015 process
The previous employer approval process was in place for many years. This process involved a self-declaration, whereby employers attested to their suitability against the criteria in Section 5.5.7(2) when seeking to register a training contract with an Australian Apprenticeship Centre (AAC), by signing an employer declaration form.
The process was applied toemployers who have never employed an apprentice/trainee before, and existing employers who are seeking to employ apprentices/trainees in a different industry area.
Strengthened employer protections from 1 January 2015
On 8 October 2014 the VRQA Board approved a revised employer approval process for the Victorian apprenticeship and traineeship system, for implementation from 1 January 2015.
The main objective of the revisions is to create a more robust process that has regard to the fitness and propriety of employers to employ apprentices and trainees in Victoria.
The second objective is to achieve strengthened protections for apprentices and trainees without increasing the regulatory burden on employers or creating barriers to small employers employing apprentices/trainees.
There is significant continuity between the two processes, as represented in Table 1.
Table 1: Comparison between pre-2015 and post 1 January 2015 systems
Changes to the employer approval process
The strengthened employer approval process continues to centre on an employer declaration form that is signed when employers seek to register a training contract with an AAC.
The changes that have been made to the employer approval process are:
- improve the content of the employer declaration form
- introduce a statutory declaration
- provide new employers with the option to fill out and sign the (non-statutory) employer declaration form or a statutory declaration
- check a sample of new employers in the field each year, in order to verify (or otherwise) their suitability to employ apprentices/trainees in Victoria. Those employers who opt to sign a statutory declaration will be exempted from verification checks in the field. Those who opt to sign the (non-statutory) employer declaration form will be candidates for verification checks in the field.
The strengthened process applies to new employers and existing employers who are seeking to employ apprentices/trainees in a different industry area.
The process is outlined in Diagram 1.
Diagram 1: Process flow for new employer approval system
The rationale for the changes
Improving the content of the employer declaration
While the Act charges the VRQA with the responsibility to assess whether employers are fit and proper persons for employing apprentices and trainees, the pre-2015 version of the employer declaration form did not ask the employer to disclose any information about their history that would shed light on their fitness to employ apprentices and trainees. For example, the previous employer declaration form did not ask whether the employer or supervisor(s) had indictable offences (eg intentionally causing serious injury, rape and sexual assault), or serious convictions or findings of guilt that apply to workplaces, such as in relation to occupational health and safety, or pay and conditions.
The new form contains questions designed to elicit this information.
The new declaration form also asks new employers to declare serious convictions or findings of guilt in relation to occupational health and safety or pay and conditions. The questions were designed with the assistance of the Office of the Fair Work Ombudsman and the Victorian WorkCover Authority.
As indicated in the diagram, if there are negative answers on the declaration form, the AAC will contact the VRQA to discuss the matter. A negative answer is an indictable offence, serious conviction or a finding of guilt that applies to workspaces eg in relation to occupational health and safety, or pay and conditions.
A negative answer on the declaration form will not automatically mean that the Delegate will deny the employer approval to enter into a training contract with an apprentice or trainee in Victoria.
The role of the Delegate is not to punish the applicant. This has been done by the court. The Delegate’s role is limited solely to considering whether the employer/supervisor(s) are fit and proper persons to employ apprentices and trainees in Victoria.
The Delegate’s final decision will be based on a range of factors and circumstances, including, but not limited to:
- the nature of the offence/conviction
- the period of time since the offence/conviction
- efforts to rehabilitate.
The introduction of a statutory declaration
From 1 January new employers will have the option to fill out and sign the (non-statutory) employer declaration form or a statutory declaration version of the form.
The questions and content in the statutory and non-statutory versions of the form are the same.
A statutory declaration is a written statement that a person signs and declares to be true and correct before an authorised witness. A person signing a statutory declaration is liable to criminal prosecution for perjury if the information provided within the statement is known to be false. The prospect of a charge of perjury provides a more robust method of obtaining honest information.
In circumstances where the VRQA learns that a new employer provided false information on a statutory declaration form, the VRQA will consider all options, including seeking criminal prosecution for perjury.
Verify the suitability of a sample of employers through field work
A weakness of the previous process is that no action was taken in the field to verify employer declarations. More than 5,000 new employers enter the system each year, making it impractical to verify all declarations.
From 1 January 2015, Authorised Officers will check a sample of new employers in the field. Authorised Officers will visit the workplace and check the suitability of the premises, equipment and methods, and knowledge and skills of the supervisors.
Employers who opt to sign a statutory declaration will be exempted from verification checks in the field. Those who opt to sign the (non-statutory) employer declaration form will be candidates for verification checks.