Temporary stand down under a registered training contract
Version 19 - 8/9/2011 (Uncontrolled document when printed)
Authority
Legislation
Vocational Education, Training and Employment Act 2000 (the Act) [PDF 1.2MB] available on the Office of the Parliamentary Counsel website
Section 86 - Temporary stand down under registered training contract
Other authority
Training and Employment Recognition Council Delegation 16 - Temporary stand down
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Modified stand down provisions for the abattoir sector of the meat processing industry [TERC 5/8/2003 Item 10.3, STC 14/3/1996 Item 5.5]
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Modified stand down arrangements for the shearing industry [TERC 28/3/2006 Item 10.3]
Associated documents
(Associated documents not hyperlinked are for DET employees only and can be located on OnePortal at: OnePortal > Education and delivery > Apprenticeships and traineeships)
Training contract
Generic show cause & information notice templates
Letter templates - Stand down due to financial hardship
Forms:
- Stand down for the abattoir sector form available on the Apprenticeships info website
- Stand down for the shearing industry form available on the Apprenticeships info website
- Out of trade register available on the Apprenticeships info website
- Education, Training and Employment Schedule
OPERATIONAL PROCEDURE
1. Section 86 of the Act provides for employers who are temporarily unable to provide apprentices and trainees with the training stated in the training plan to seek a temporary stand down of those apprentices and trainees.
2. Temporary stand down applications can be considered only in cases where the training contract is registered the status is currently 'Active' or 'Active-Recommencement'.
3. School-based apprentices and trainees are now subject to stand down procedures. The Education, Training and Employment Schedule (ETES) is required to reflect the school-based apprentice's or trainee's schedule of work and training, and ensure they undertake the required minimum equivalent of 48 days full-time per year paid employment (80 days for electrotechnology). If a school-based apprentice or trainee is stood down on a day they had been scheduled to work, they are still required to work the required minimum number of days that year (that is, a 'make-up' day may need to be slotted in later in the year).
4. Retrospective applications for temporary stand down cannot be considered. Apprentices and trainees would be entitled to pay for any period of unauthorised stand down.
5. Applications for temporary stand down can be considered for probationary apprentices and trainees provided the training contract is registered. Applications of this nature should be discouraged, as difficulties in providing training during probation would indicate strong potential for greater problems of this nature following expiry of the probationary period.
6. Applications for temporary stand down for part-time apprentices and trainees should be considered similarly to those under full-time training arrangements. Employers may be unable to meet their obligation under part-time arrangements to provide a minimum of 15 hours per week employment and training averaged over a four-week period. If this occurs, employers may apply for temporary stand down.
7. An approved temporary stand down relieves employers of their obligations in relation to the training contract for the duration of the approval. Approval of a stand down results in the apprentice or trainee forfeiting training and wages for the duration of the stand down.
There are a number of issues which must be considered prior to a decision being reached on whether temporary stand down is approved or refused. Because of the hardship temporary stand down can create for the apprentice or trainee, approval is considered a position of last resort - a view held and confirmed by the Chair, Training and Employment Recognition Council.
9. In cases where a period of approved temporary stand down encompasses one or more public holidays, the public holiday/s normally should not be excluded from the approved period. Training Queensland officers should be very vigilant in ensuring employers do not use stand downs to circumvent their obligation to pay entitlements for public holidays. Section 86(3) authorises delegated officers to determine those days, during an approved period, to which temporary stand down will apply. Evidence of abuse of this "public holiday" provision may necessitate officers exercising their authority to exclude public holidays from approved periods.
Some awards and agreements provide that, where an employee is stood down by their employer during December and re-employed by the employer before the end of the next January, the employer must pay the employee at the ordinary rate payable for the Christmas Day, Boxing Day, and New Year's Day public holidays that fall during the Christmas period.
10. Capacity remains for ancillary employment to occur, rather than obliging employers to seek temporary stand down in all cases of temporary lulls in business activity. As well as the above, subsection 86(5) of the Act states, "If the apprentice or trainee is stood down, the apprentice or trainee is also stood down from employment with the employer unless the employer and the apprentice or trainee otherwise agree. This subsection does not seek to remove the option of an apprentice or trainee being employed short-term on work which is not related to his/her training plan. Page 69 of the Explanatory Notes to the Training and Employment Bill refers.
11. Generally, training contracts should not be registered for an employer who, at the date of commencement of the contract, has an apprentice or trainee in the same apprenticeship or traineeship on stand down, regardless of the level of the stood down apprentice or trainee. Refusal of such a registration should remain for the duration of the stand down or ancillary employment. Officers may place an adhoc identifier to stop the further registration of apprentices and/or trainees in the same qualification.
12. Section 86(2) of the Act requires employers seeking a temporary stand down to make a written application. The application should contain the following:
- full name and details of the trade calling or traineeship occupation and current stage of training for the apprentice or trainee for whom the temporary stand down is requested
- if the training contract is a part-time or school-based arrangement, details of specific employment conditions, ie the number of hours normally worked each week
- the name of the applicable award or agreement
- details of the amount of work currently available and the likely prospects for available work
- size of employer's workforce, details of numeric variations in workforce (up and/or down) during the last three months, and anticipated changes
- information on other apprentices or trainees employed in the enterprise and the employer's intentions in relation to them
- details of duration and format of requested temporary stand down - ie whether the temporary stand down is being sought for the whole period or whether it is being sought for a number of days each week
- the date from which temporary stand down is planned to commence
- Group Training Organisations must also provide detail of efforts made to place the apprentice or trainee with alternative host trainers.
13. When considering an application, the following points should be taken into account:
(a) Industrial coverage: Does the applicable award or agreement contain provisions limiting stand downs (eg on public holidays over the Christmas/New Year period). Enquiries for the private sector should be made with the Fair Work Infoline on 13 13 94 or www.fairwork.gov.au.
(b) Completion: Would it be possible and appropriate for the employer and apprentice or trainee to notify completion of the training and for the supervising registered training organisation to issue the qualification? For more information, refer to the operational procedure for Completion of apprenticeship or traineeship.
(e) Conversion to part-time arrangements: Is it likely that the circumstances leading to the temporary stand down request will be of a long-term nature? For example, is temporary stand down being sought due to a downturn in business, which is expected to be ongoing? If the answer is "yes", temporary stand down will not address the long-term problem and the parties may wish to consider converting from full-time to part-time arrangements. For more detail, refer to the information sheet on Changing the training contract available on the Apprenticeships Info website and Major amendment form also available on the Apprenticeship Info website.
(f) Assignment of the registered training contract: Temporary assignment of the training contract to another employer may be possible. In this case the employer should be encouraged to assist the apprentice or trainee in establishing a temporary placement with a new employer. For more information, refer to the operational procedure on Temporary assignment.
(g) Employer's intentions in relation to other employees: It is expected that approved temporary stand downs will be shared amongst all employees, where possible, to ensure the apprentice or trainee is not required to "shoulder the full load".
When considering an application from an employer for the temporary stand down of more than one trainee, the circumstances of each should be considered individually.
This is significant when a large employer applies to stand down all apprentices or trainees in a certain trade calling or traineeship occupation or if the employer is a group training organisation.
15. Officers should be mindful of the special nature of group training organisations and the original concept of providing employment and training opportunities by accessing the resources of a number of host trainers. Group training organisations are expected to possess a sufficient "host trainer base" to make applications for temporary stand down unnecessary or rare. Temporary stand down equates to the apprentice or trainee forfeiting entitlements and should be approved "as a measure of last resort". Approvals significantly disadvantage apprentices and trainees and should not be used to reward group training organisations which have failed to provide an appropriate host trainer base. In this respect group training organisations should be committed to the maintenance of the training contract.
If the application for temporary stand down is from a group training organisation the following additional criteria should be considered.
(a) Applications in relation to groups of apprentices or trainees should not be considered. Applications should provide individual details on all apprentices or trainees for whom the organisation seeks temporary stand down.
(b) The geographical coverage of the group training organisation may prevent the expansion of its host trainer numbers or the ready movement of apprentices or trainees between host trainers. This should be remembered when considering temporary movement of apprentices or trainees between different hosts when trying to spread the stand down impact across a number of trainees.
(c) Has the group training organisation attempted to rotate the apprentice or trainee with another apprentice or trainee who plans to attend college or take leave? This may not often be an option but does provide a mechanism whereby some stand down requests may be circumvented.
(d) Temporary assignment of the training contract to another employer may be possible. In this case the employer should be encouraged to assist the apprentice or trainee in establishing a temporary placement with a new employer. For more information, refer to the operational procedure on Temporary assignment.
(e) All ancillary employment - i.e. time when the apprentice or trainee is paid wages by the group training organisation but is not working in their trade or traineeship - is the responsibility of the group training organisation. Group training organisations should budget for these expenses and not seek to use stand downs as a revenue retention mechanism. It is therefore reasonable to seek and obtain information from the group training organisation on the duration of ancillary employment applied to a specific trainee prior to the temporary stand down being sought.
(f) New training contracts should not be registered for an employer who, at the date of commencement of the contract, has an apprentice or trainee in the same apprenticeship or traineeship on stand down, regardless of the level of the stood down apprentice or trainee. While this rule has application for group training organisations, circumstances specific to the nature of group training operations will demand its occasional relaxation.
Example - A group training organisation based at Rockhampton has received approval to temporarily stand down a level one and a level three carpentry apprentice, both of whom live in Rockhampton. During the period of approved stand down, the group training organisation lodges applications to register level one and level two carpentry apprentices with host trainers based at Clermont and Barcaldine. Under normal circumstances, it would be reasonable for regional officers to question the group training organisation about why the stood down apprentices were not placed with the new host trainers. However in this case, the host trainers are based at locations remote to the stood down apprentices and it may be unreasonable to insist that they be given the available placement and the registrations refused.
(g) Other situations requiring investigation include cases where:
- the group training organisation has demonstrated an inability to manage apprentices and/or trainees in a particular industry and/or
- the organisation attempts to replace a higher-level apprentice or trainee on stand down with a lower-level apprentice or trainee with the same host trainer. While there may be very legitimate reasons for the host trainer seeking a lower level apprentice or trainee, officers must consider the group training organisation's "host trainer base" and question whether approval is likely to expose the new apprentice or trainee to stand down once they too become surplus to the host's needs. Dependent upon the findings of the investigations, the appropriateness of the registration of the second training contract in these scenarios may be questioned.
16. Once an application for temporary stand down is received, the matter must be investigated. All parties to the training contract should be interviewed (apprentice/employer, trainee and guardian). Details in relation to availability of work and likely future viability of the training contract should be discussed. It may be found that the apprentice/trainee supports the employer's application. All parties should be advised of their obligations, entitlements and options in relation to temporary stand downs, conversion to part-time, temporary assignment and cancellation of training contracts.
Note: The Industrial Relations Act 1999 requires an employer to pay his/her apprentice or trainee's wages until such time as the temporary stand down application is approved. Failure by the employer to apply the correct procedure could result in the apprentice or trainee being owed wages for periods of unapproved stand down. Because of this, applications are given high priority by the department.
17. Provided all the above matters have been addressed, the delegated officer can decide on the approval or non-approval of the application based on the facts obtained during the investigation.
18. If the application for temporary stand down is approved, Training Queensland officers must forward an information notice and covering letter to the employer, apprentice or trainee and, where appropriate, the parent or guardian. For school-based apprentices and trainees, Training Queensland officers should also ensure the student's school is informed regarding how the approved stand down will impact the student's Education, Training and Employment Schedule (ETES).
19. New training contracts should not be registered for an employer who, at the date of commencement of the contract, has an apprentice or trainee in the same apprenticeship or traineeship on stand down, regardless of the level of the stood down apprentice or trainee.
20. If the application is not approved, Training Queensland officers must forward a information notice and covering letter to the employer, apprentice or trainee and, where appropriate, the parent or guardian. Refer to the DELTA manual or contact the DELTA Help Desk on 323 70651 for assistance with any DELTA issues.
21. An aggrieved party may challenge a decision of the council through the following process:
- review by the local DET office
- complaint to the Training Ombudsman and/or
- appeal to the Industrial Commission.
Please note that a parent or guardian cannot be an aggrieved party in an appeal to the Industrial Commission and this is advised in the information notice.
22. If sufficient work becomes available during the approved stand down period the apprentice or trainee must be allowed to return to work and the employer should advise the department accordingly.
23. Time lost due to temporary stand down will not automatically extend the nominal term of the training contract. Employers wishing to extend the nominal term due to lost time will need to make application to the Training and Employment Recognition Council.
24. Some employers encounter problems so serious their business must close. For others, survival precludes retention of the trainee. Employers finding themselves in such a position may seek cancellation of the training contract rather than apply for a temporary stand down. In instances where continued employment under the training contract is unlikely and mutual cancellation is agreed, the employer should be encouraged to assist the apprentice or trainee in establishing a new training contract with another employer. Where mutual agreement to cancel is not achieved, the matter will need to be determined in accordance with Section 63 or Section 66 of the Act. For more information, refer to the relevant operational procedures for cancellation.
25. Centrelink has provided information indicating that apprentices and trainees on approved stand down may be eligible to receive financial benefits from the Federal Government. Eligibility is considered on a case-by-case basis and individual apprentices and trainees would need to satisfy a number of criteria including:
- an "Activity Test" obliging them to actively look for suitable paid work during their period of stand down. Apprentices and trainees should be advised to telephone Centrelink on 13 28 50 for specific information and advice and
- an "Asset Test" (which is understood to be quite generous) and
- an "Income Test" (Gross income is assessed).
Meat Processing Sector
In March 1996, modified stand down arrangements for the abattoir sector of the meat industry were introduced. These arrangements provide for the automatic approval of stand downs where certain circumstances force closure or temporary shut down of the plant, the circumstances being:
- where there is insufficient stock available for slaughter which forces closure or a temporary shut down of the plant
- where seasonal weather, maintenance or other factors force closure or a temporary shut down of the plant.
At its August 2003 meeting, the Training and Employment Recognition Council approved the expansion of existing stand down provisions for trainees in the abattoir sector of the meat processing industry. In addition to the above circumstances, temporary stand down arrangements shall also apply in the following instance:
- where an applicable industrial instrument has provisions allowing employers to stand down employees in circumstances where production is not possible in the plant or part of the plant.
The stand down of all employees, including trainees, must be applied equitably across the workforce and in keeping with stand down and dispute provisions of the parent award or agreement.
Abattoirs using these arrangements are required to provide monthly reports to their local departmental regional office, reporting on the incidence and reasons for the stand down of trainees. The reports must be made on the Stand down for the abattoir sector form.
Departmental regional officers are required to convey stand down information to the central office in Brisbane who, in turn will have these reports tabled at council meetings held every two months.
In all other circumstances, authority to approve stand down applications remains with the Training and Employment Recognition Council or other delegated officer within the department.
Building Construction Industry
Modified stand down arrangements apply for apprentices and trainees employed under the Building Construction Industry Award - State 2003 or the Building Trades Public Sector Award - State 2002. The modifications are in relation to inclement weather, that is:
- Employers do not need to apply for a stand down under Section 96 of the Act, either for the 32 hours paid for inclement weather or for any deduction of wages for inclement weather.
- If there is a significant threat to the employer being able to fulfil their requirement to provide training in accordance with the training plan, they will have to apply for a stand down under Section 86.
In all other circumstances, authority to approve stand down applications remains with the delegated officer within the department.
Shearing Industry
The Training and Employment Recognition Council has approved modified stand down arrangements for the shearing industry only in cases where:
- a temporary assignment suitable to both employer and trainee cannot be arranged and
- training with the supervising registered training organisation cannot be arranged and either
- insufficient stock available for shearing is forcing the closure or temporary cessation of shearing at the shed where the trainee is employed or
- seasonal, weather, breakdowns, maintenance or other factors are forcing the closure or temporary cessation of shearing at the shed where the trainee is employed or
- shearing has ceased at the shed where the trainee is employed and the employer temporarily does not have another shed contracted for shearing.
Council approved the following process for modified stand down arrangements for shearing trainees:
- shearing contractors (the employers) shall complete the application form, Modified Stand Down Arrangements for the Shearing Industry, and submit it to the nearest regional office of the Department of Education and Training prior to the stand down or as soon as possible after and
- on receipt of the form, Training Queensland officers will automatically approve the application without any further investigation.
Departmental regional officers are required to convey stand down information to the central office in Brisbane who, in turn, will have these reports tabled at council meetings held every two months.
In all other circumstances, authority to approve stand down applications remains with the Training and Employment Recognition Council or other delegated officer within the department.