Details of the Financial Framework (Supplementary Powers) Amendment 

(Employment and Workplace Relations Measures No. 1) Regulations 2022

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Employment and Workplace Relations
Measures No. 1) Regulations 2022.

 

Section 2 - Commencement

 

This section provides that the Regulations commence on the day after registration on the Federal Register of Legislation.

 

Section 3 - Authority

 

This section provides that the Regulations are made under the Financial Framework (Supplementary Powers) Act 1997.

 

Section 4 - Schedules

 

This section provides that the Financial Framework (Supplementary Powers) Regulations 1997 are amended as set out in the Schedule to the Regulations.

 

Schedule 1 - Amendments

 

Financial Framework (Supplementary Powers) Regulations 1997

 

Item 1 - Part 4 of Schedule 1AB (table item 359)

 

This item amends table item 359 in Part 4 of Schedule 1AB by repealing and substituting the full text of the item. The amended table item 359 establishes legislative authority for government spending on the Foundation Skills for Your Future Program (the program), which is administered by the Department of Employment and Workplace Relations (the department).

 

The program aims to support individuals with low language, literacy, numeracy and digital literacy (LLND) skills to allow them to gain the skills they need to engage with further training and employment opportunities to participate, or more fully participate, in the workforce and the community. Table item 359 is being amended to provide the flexibility to accommodate minor changes to the eligibility criteria whilst also providing sufficient flexibility for the expansion of the program to include the development and delivery of teaching resources.

 

The Australian Government announced the program in the 2019-20 Budget as an initiative under the Skills Package - Delivering Skills for Today and Tomorrow with funding of $52.5 million over four years from 2019-20. This followed the release of the 2019 Strengthening Skills Expert Review of Australia's Vocational Education and Training System, led by the Hon Steven Joyce (the Joyce Review), which highlighted the critical importance for all Australians to have the basic LLND skills to allow them to participate in modern life. The Joyce Review (https://www.pmc.gov.au/sites/default/files/publications/strengthening-skills-independent-review-australia-vets_1.pdf) has been recognised as part of the Heads of Agreement for Skills Reform, under which all Australian governments have committed to:

*         provide stronger support for foundation skills; and

*         ensure access to that support for all Australians with low levels of LLND skills ability.

 

The program commenced in May 2020 with the first training projects under the program commencing in September 2020. Around 100 training projects have been approved for funding under the program to date.

 

Legislative authority was initially provided for the program to provide skills training in language, literacy, numeracy and digital literacy for persons with an educational attainment of year 12 or below to facilitate their participation in further training or the workforce.

 

The program allows up to 11,000 eligible Australians to develop their LLND skills by engaging with training opportunities. The program supports eligible individuals to identify LLND skill deficits, and to address identified deficits through access to either accredited or non-accredited training. Eligible individuals are supported to identify and address skills needs to help them up-skill or re-skill for new roles, to obtain and retain secure employment and to undertake further education and training.

 

The program will be expanded to widen the eligibility criteria so that more Australians, including persons who are employed or recently unemployed can benefit and continue getting support with LLND training. The program will also enable the development and delivery of teaching resources that will be made available online.

 

More specifically, the program eligibility criteria under the amended table item 359 will target people who:

• are Australian citizens or permanent residents;
• are aged 15 and over;
• have finished with secondary school education;
• are currently employed or recently unemployed (within the past 9 months); and
• are not currently registered with an Australian Government employment service provider or enrolled in a similar program.

 

A panel consisting of 29 registered training organisations (RTOs) has been contracted under the program. These RTOs develop and deliver the LLND training, either in a traditional vocational education and training (VET) setting, or in partnership with employers in a workplace setting. The duration of the LLND training varies and is dependent on the needs of the specific learner cohort. RTOs assess the LLND skill levels of participants before and after training to measure skill improvements. RTOs also manage student participation in the program in accordance with the eligibility criteria.

 

The expanded program will enable the development of LLND teaching resources that will be available for RTOs to deliver training. Teaching resources may include training and assessment materials such as innovative online resources, training tools that support LLND learning and assessment tools. The online publication of these resources will support their use by RTOs delivering training under the program which may reduce the need for them to develop their own resources. The resources will also be available for use by other RTOs that deliver LLND training.

 

In December 2019, the department commenced an open tender procurement process to establish a panel of RTOs to deliver projects under the program. Successful RTOs entered into Deeds of Standing Offer with the department to provide program services for a period commencing in April 2020 (the dates varied as the Deeds commenced on the last date the Party signed the Deed) and ending on 30 June 2022. The agreements included a 12-month extension option that was exercised in April 2022. Each of those agreements sets out the specific contract regions in which the relevant training organisation can put forward project application proposals to deliver services under the program.

 

In May 2020, the department conducted a second open tender procurement process with a view to expanding the number of providers on the Panel nationally. Deeds of Standing Offer were entered into with successful tenderers for a period commencing in August 2020 and ending on 30 June 2022. The agreements included a 12-month extension option that was exercised in April 2022.

 

Under the program, the panel of 29 providers submit project funding applications in their contracted regions. These applications are assessed by a panel of language, literacy and numeracy specialists and a recommendation on funding is provided to the delegate.

 

Information relating to both procurement processes was published on AusTender (www.tenders.gov.au).

 

The tender process and the administration of the procurements were conducted in accordance with the Commonwealth Procurement Rules 2019 (CPRs) and adhered to applicable approach to market and other procurement requirements. Expenditure of funding to date has also been conducted in accordance with the department's Accountable Authority Instructions (AAIs) on the expenditure of relevant monies, and in accordance with the Public Governance, Performance and Accountability Act 2013 (PGPA Act).

 

Funding decisions in relation to procurements, including program arrangements and approvals of commitments of relevant money were made by the Secretary of the department or their delegates. The delegate for the program as a whole is the First Assistant Secretary, Apprenticeships and Foundation Skills Division. The other delegate who is responsible for approving projects under the program is the Assistant Secretary, Foundation and Transition Programs Branch. Both delegates have the appropriate qualification, skills, experience and knowledge of the program to enable them to perform their administrative powers and functions in accordance with the PGPA Act, CPRs and the department's AAIs.

 

If any further open tender procurement processes are required, decisions with respect to these procurements will also be subject to an independent complaints mechanism under the Government Procurement (Judicial Review) Act 2018 (the Act). The department will formally investigate complaints that are made in accordance with the Act.

 

In respect of funding decisions made to RTOs on the existing panel, independent merits review will not be provided. With reference to paragraphs 4.11 to 4.19 of the Administrative Review Council's (ARC) guide 'What decisions should be subject to merit review?', the characteristics of such decisions that support this conclusion is that the decision to procure the services of one provider involves the allocation of finite resources between competing applicants, and an allocation that has already been made to another party would be affected by overturning the original decision. As the funding is limited, any reversal of a decision on whether a party is successful or not will then cause the displacement of, and disadvantage to, another successful party. It would not be feasible for the department to make such decisions subject to independent merit review.

 

For individuals accessing the program, a complaints mechanism is in place with each service provider allowing a decision on eligibility and access to the program to be reviewed internally. Should they not be satisfied, an individual is able to lodge a complaint or request a review by an independent review officer of the department.

 

The program was developed in response to the Joyce Review. The Joyce Review conducted far-reaching consultation through 2018-19, and ultimately received 192 public submissions from registered training organisations, employers, governments and individuals.

 

Following the announcement of the program in the 2019-20 Budget, the department consulted with stakeholders on the implementation of the program. Consultations informed areas where changes to policy and program administration could improve take up and delivery of the program. Consultation was with the VET Expert Panel, the VET Stakeholder Committee, state and territory government officials and the Reading Writing Hotline Steering Committee.

 

Funding of $52.5 million over four years from 2019-20 for the program came from
Sub-program 3.1.2 - Access to Training under Program 3.1: Building Skills and Capability, which is part of Outcome 3. Details are set out in the Portfolio Additional Estimates Statements 2021-22, Education, Skills and Employment Portfolio at page 51.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the following powers of the Constitution:

*         the communications power (section 51(v)); and

*         the external affairs power (section 51(xxix)).

 

Communications power

 

Section 51(v) of the Constitution empowers the Parliament to make laws with respect to 'postal, telegraphic, telephonic and other like services'. The new teaching resources component of the program will fund the development of material for publication online.

 

External affairs power

 

Section 51(xxix) of the Constitution empowers the Parliament to make laws with respect to 'external affairs'. The external affairs power supports legislation implementing Australia's international obligations under treaties to which it is a party. In particular, the following treaties are relevant:

 

• International Covenant on Economic, Social and Cultural Rights [1976] ATS 5 (ICESCR), particularly Articles 2 and 6, in particular, which concerns the right to work.

 

Article 2(1) of the ICESCR obliges each State Party to take steps 'to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.' Article 6(1) of the ICESCR provides that States Parties recognise the 'right to work'.

 

The objective of the program is to contribute to improved employment outcomes for individuals. The program will assist in improving Australia's technical and vocational guidance and training programs.

 

The program was announced in response to the Joyce Review. The Joyce Review conducted a far-reaching consultation, and ultimately received 192 public submissions from training organisations, employers, governments and individuals.

 

• International Labour Organization's Convention concerning Employment Policy [1970] ATS 17 (ILO Convention 122), particularly Articles 1 and 2, which are about promoting full, productive and freely chosen employment.

 

Article 1(1) of the ILO Convention 122 requires Members to 'declare and pursue ... an active policy designed to promote full, productive and freely chosen employment.' Article 1(2) specifies that this policy shall aim to ensure that (among other things) 'there is work for all who are available for and seeking work'. Article 2 further requires Members 'decide on and keep under review ... the measures to be adopted for attaining the objectives specified in Article 1', and to 'take such steps as may be needed ... for the application of these measures'.

 

The objective of the program is to improve employment outcomes for individuals. In particular, the program intends to assist individuals whose low language, literacy, numeracy and digital literacy skills are preventing them from fully participating in the modern labour market. As higher educational attainment is associated with better employment outcomes, the program will ultimately increase the opportunity for each worker to use their skills in a job for which they are well suited.

 

• International Labour Organization's Convention concerning Vocational Guidance and Vocational Training in the Development of Human Resources [1986] ATS 2 (ILO Convention 142), particularly Articles 1, 2 and 4, which are about vocational guidance and training.

 

Article 1(1) of ILO Convention 142 obliges Members to 'adopt and develop comprehensive and co-ordinated policies and programmes of vocational guidance and vocational training, closely linked with employment'. Article 1(2) requires the policies and programmes adopted for the purposes of Article 1(1) to take due account of matters including 'employment needs, opportunities and problems, both regional and national' (Article 1(2)(a)).

 

Article 2 of the ILO Convention 142 obliges each Member to 'establish and develop open, flexible and complementary systems of general, technical and vocational education, educational and vocational guidance and vocational training, whether these activities take place within the system of formal education or outside it'.

 

Article 4 of the ILO Convention 142 obliges each Member party to 'gradually extend, adapt and harmonise its vocational training systems to meet the needs for vocational training throughout the life of both young persons and adults in all sectors of the economy and branches of economic activity and at all levels of skill and responsibility'.

 

The outcomes of the program will assist to inform the Government on how to improve existing policies of vocational guidance and vocational training. The program will contribute to improvement and adaptation of the overall vocational training system, to meet the vocational training needs for all individuals.

 

Item 2 - In the appropriate position in Part 4 of Schedule 1AB (table)

 

This item adds one new table item to Part 4 of Schedule 1AB to establish legislative authority for government spending on an activity administered by the department.

 

New table item 554 establishes legislative authority for government spending on the Australian Apprenticeships Incentive System (Incentives System), which aims to support Australian Apprenticeship commencement levels and address low retention and completion rates.

 

The Incentives System plays a key role in building a more inclusive and sustainable economy, ensuring Australians receive quality training while in employment. It builds a pipeline of skills and talent in the Australian workforce, helping businesses to meet their current and future skills gaps and realise the opportunities of a recovering economy.

 

Prior to the COVID-19 pandemic, apprenticeships had become increasingly unattractive to employers due to high supervision costs, low productivity returns and declining completion rates. For apprentices, low training wages for up to four years acted as a deterrent, particularly where the general labour market presented higher paying alternatives. The new Incentives System will offset some of the costs of an apprenticeship, encouraging commencements and retention through to completion.

 

From 1 July 2022, the new Incentives System offers financial and non-financial incentives to support employers and apprentices through an apprenticeship. This includes support provided through the Australian Apprenticeship Support Network (AASN) for all people considering undertaking an apprenticeship, or considering hiring an apprentice, to help them understand and navigate the apprenticeship system and in-training support. In-training support provides apprentices identified as being at risk of non-completion, with flexible, wrap-around care to address individual barriers that might prevent them from completing their apprenticeship, such as mentoring, pastoral care, career guidance and help to find a new employer.
In-training support also assists employers who may be having difficulties with the apprenticeship relationship.

 

The new Incentives System has replaced the Australian Apprenticeships Incentives Program which closed to new apprentices on 30 June 2022 and included the Boosting Apprenticeship Commencements and Completing Apprenticeships Commencements measures. The Australian Apprenticeships Incentives Program will continue to support Australian Apprentices who commenced prior to 1 July 2022 with a range of standard and targeted support through grandfathering arrangements until a specified event such as an apprenticeship completion, cancellation, suspension or change of employer renders that claimant ineligible to access further Australian Apprenticeships Incentives Program payments.

 

The target groups for the Incentives System are employers of new or recommencing Australian Apprentices and new or recommencing Australian Apprentices themselves. AASN providers will assist employers and apprentices to determine their eligibility for incentives and guide them through the application and claims process. AASN providers are the first point of contact for employers and prospective apprentices when considering an apprenticeship. They provide personalised advice and support services from
pre-commencement to completion, as well as administering Government incentives including payment processing. Funding will be provided to the AASN for these services.

 

The new Incentives System is being implemented in two phases: Phase One (1 July 2022 to 30 June 2024) and Phase Two (1 July 2024 onwards). The impact of the new Incentives System will be reviewed at two intervals. The first will be a checkpoint two years after commencement to assess progress (July 2024). The second review at four years after commencement (July 2026) will measure the impact on Australian Apprenticeship completion rates.

 

Under Phase One, funding will focus on priority occupations and will also continue to support non-priority occupations, as those sectors recover from the impacts of the COVID-19 pandemic and the economy continues to face skills shortages.

 

Priority occupations are those listed on the Australian Apprenticeships Priority List (Priority List), including occupations classified by the Australian Bureau of Statistics (ABS) as Technician and Trade Workers or Community and Personal Service Workers and assessed by the National Skills Commission (NSC) as being in national skills shortage. Non-priority occupations are occupations that are not included on the Priority List, typically because they were not assessed as being in a skills shortage by the NSC or did not meet the ABS classification requirements. Currently, this includes occupations such as Clerks and Sales Assistants, Hospitality Workers, and Office Managers. The Priority List will be updated regularly, based on the NSC analysis.

 

Employers of apprentices in priority occupations will be able to access a wage subsidy, set at 10 per cent in the first and second year (up to $1,500 per quarter) and five per cent in the third year (up to $750 per quarter) of an apprenticeship. Wage subsidy claims will be processed and verified through the Apprenticeships Data Management System (ADMS), with wage subsidy claims to be verified by Services Australia where additional verification is needed. Compliance activities will be undertaken by the department.

 

In addition, to support more apprentices to complete their apprenticeships, apprentices in priority occupations will receive a direct payment (the Australian Apprentice Training Support Payment) of $1,250 every six months for their first two years, up to a total amount of $5,000.

 

Employers of apprentices in non-priority occupations will receive hiring incentive payments totalling $3,500, consisting of $1,750 instalments paid at 6 and 12 months from apprenticeship commencement.

 

As part of the Incentives System, several complementary payments and supports from the Australian Apprenticeships Incentives Program have continued, including the Disability Australian Apprentice Wage Support (DAAWS), and the off-the-job Tutorial, Mentor and Interpreter Assistance available to apprentices with disability as well as the Living Away from Home Allowance (LAFHA). This ensures support is targeted to Australian Apprentices that need it the most.

 

The DAAWS incentive provides support to eligible employers to assist with the higher supervisory costs for Australian Apprentices with disability in a Certificate II or higher level qualification. DAAWS is paid at a rate of $104.30 per week for a full-time Australian Apprentice, and on a pro-rata scale according to the hours worked for a part-time Australian Apprentice.

 

Off-the-job Tutorial, Mentor and Interpreter Assistance payments are also available to registered training organisations (RTOs) to support Australian Apprentices with disability at a rate of $38.50 per hour (up to $5,500 per eligible apprentice or trainee per annum) for tutorial, mentoring and interpreter services for apprentices experiencing difficulties with the off-the-job component of their training.

 

The LAFHA provides a tax exempt, weekly allowance to Australian Apprentices who must move away from their parents' or legal guardians' home for the first time, or travel significant distances to take up or retain an Australian Apprenticeship. Eligible recipients can claim payments ranging from $77.17 per week in their first year to $25 per week in the third year. LAFHA is also available to Australian Apprentices who are homeless.

 

Non-financial support will include Gateway places (pre-commencement advice and matching employers with apprentices), as well as in-training support to assist employers and apprentices at risk of non-completion.

 

Under Phase Two, the Government investment in the apprenticeships system will stabilise to around 2019 levels (pre-COVID-19). Support will be available for priority occupations only (as per the Priority List), helping to ensure it is targeting the skills in demand across the economy.

 

Support in Phase Two will include a Hiring Incentive of $4,000 for employers with apprentices in-training in priority occupations, paid in two instalments ($1,000 at 6 months after commencement, and $3,000 at 12 months after commencement). Phase Two will also include an Australian Apprentice Training Support Payment of $750 every six months over two years (up to $3,000) for apprentices training in priority occupations. DAAWS, LAHFA and in-training support will continue to be available in Phase Two.

 

The department delivers the Incentives System through a demand-driven grant process in accordance with the Commonwealth resource management framework, including the PGPA Act, the Commonwealth Grant Rules and Guidelines 2017 (CGRGs) and the department's AAIs.

 

A delegate of the Secretary of the department will make decisions under the program to pay grants to eligible individuals based on relevant information provided by applicants and drawn from the ADMS or AASN providers (depending on the type of incentive being claimed). The relevant delegate will be an SES officer with responsibility for, and a detailed understanding of, the administration of the Incentives System.

 

Decisions on individuals' eligibility to receive grants under the Incentives System will not be made available to the public given the volume of decisions being made and the
non-discretionary nature of each payment decision.

 

Program guidelines have been made public on the department's website (www.dewr.gov.au) and on GrantConnect at www.grants.gov.au. The guidelines, among other things, set out detailed eligibility requirements for payments available under the Incentives System and review options for applicants in relation to individual grant decisions.

 

Contracted AASN providers will continue to provide frontline administration of Commonwealth incentives for apprenticeships and wrap-around services for the new system. This single point of support ensures that employers and apprentices will be supported to understand what incentives they are eligible for under the new system, as well as being supported to access those incentives.

 

AASN providers have been engaged by the Commonwealth through an open tender procurement process to provide services to Australian Apprentices and their employers. The process and the administration of the procurements were conducted in accordance with the CPRs, and adhered to applicable approach to market and other procurement requirements. Expenditure of funding to date has also been conducted in accordance with the department's AAIs on the expenditure of relevant monies, and in accordance with the PGPA Act.

 

Final decisions about variations to the existing arrangements and approvals of commitments of relevant money to implement the new Incentives System will be made by a delegate of the Secretary of the department. The relevant delegate will be an SES officer with responsibility for, and a detailed understanding of, the administration of the Incentives System.

 

Decisions about individual incentive payments will not be subject to independent merits review. The ARC's guide (see paragraphs 3.1 and 3.8) provides that decisions that automatically follow from the happening of a set of circumstances are unsuitable for merits review. Relevantly, the types of payment decisions to be made under the Incentives System will be based on non-discretionary, factual criteria and are therefore unsuitable for merits review. For example, a person's eligibility to receive an incentive payment under the program will depend on strictly factual criteria such as:

*         whether an apprentice is enrolled to study in an accredited course that leads to a particular occupation;

*         whether a training contract is in place as approved by the relevant state or territory authority; and

*         the person's citizenship or residency status.

 

Where these factual circumstances are satisfied, the applicant will generally be found eligible for the incentive payment. There is very limited discretion available to a decision maker in determining a person's eligibility for these incentives.

 

The program guidelines will, however, require the AASN providers to have an accessible and freely available complaints resolution process. Reviews conducted by the AASN provider that uphold the original decision will be subsequently reviewed by the department. An applicant who is otherwise unsatisfied with a decision outcome will be able to make a complaint to the Commonwealth Ombudsman.

 

Procurement decisions made in connection with the delivery of the Incentives System are not considered suitable for independent merits review, as they are decisions relating to the allocation of a finite resource, from which all potential claims for a share of the resource cannot be met. In addition, any funding that has already been allocated would be affected if the original decision was overturned. The ARC has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.19 of the ARC's guide).

 

The re-making of a procurement decision after entry into a contractual arrangement with a successful provider is legally complex, impractical, and could result in delays to providing services to platform users.

 

The Government Procurement (Judicial Review) Act 2018 enables suppliers to challenge some procurement processes for alleged breaches of certain procurement rules. This legislation might provide an additional avenue of redress (compensation or injunction) for dissatisfied providers or potential providers, depending on the circumstances.

 

In developing the Incentives System, the Government sought feedback from employers, apprentices, peak bodies, training organisations and state and territory governments on challenges with previous incentives, such as the Australian Apprenticeship Incentives Program, and possible options for an improved system.

 

In particular, workshops with the Skills Senior Officials' Network, the Skills Expert Panel, and the VET Stakeholder Committee contributed ideas for an effective incentive framework. The department also commissioned the Wallis Social Research agency in late 2021 to explore what supports apprentices and employers needed to help them succeed in the Australian Apprenticeship ecosystem. Wallis surveyed 500 current apprentices as well as 500 employers of apprentices and sought input on the type of support needed to improve apprenticeship commencements and completion rates.

 

Consultation confirmed a new incentives system should prioritise sustaining commencements (above pre COVID-19 levels), targeting skill shortages to secure the future of Australia's pipeline of skilled workers, and providing more support to Australian Apprentices directly, to help improve completions. These matters have been considered when designing the new Incentives System.

 

Funding of $2.4 billion for the Incentives System was included in the 2022-23 Budget under the measure 'Investing in Skills Development and Growing Australia's Workforce' for a period of four years commencing in 2021-22. Details are set out in Budget 2022-23, Budget Measures, Budget Paper No. 2 2022-23 at pages 76-77. This measure builds on the 2021-22 Mid-Year Economic and Fiscal Outlook measure titled 'Supporting Jobs in the Economic Recovery' and the 2021-22 Budget measure titled 'Building Skills for the Future - Boosting Apprenticeship Commencements wage subsidy - expansion'.

 

Funding for this item will come from Program 3.1: Building Skills and Capability, which was part of Outcome 3. Details are set out in the Portfolio Budget Statements 2022-23, Budget Related Paper No. 1.4, Education, Skills and Employment Portfolio at pages 12-13, and 72.

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the following powers of the Constitution:

*      the social welfare power (section 51(xxiiiA)); and

*      the external affairs power (section 51(xxix)).

 

Social welfare power

 

The social welfare power in section 51(xxiiiA) of the Constitution empowers the Parliament to make laws with respect to the provision of certain social welfare benefits, including the provision of benefits to students.

 

The new Incentives System provides financial and non-financial incentives to Australian Apprentices to support them to gain skills, experience and qualifications that can lead to increased opportunities for employment. The program will assist with living expenses where individuals are required to move away from their parents or guardian's home to take up or remain in an Australian Apprenticeship.

 

External affairs power

 

Section 51(xxix) of the Constitution empowers the Parliament to make laws with respect to 'external affairs'. The external affairs power supports legislation implementing Australia's international obligations under treaties to which it is a party. The relevant provisions of the treaties referred to in the items are as follows: 

 

-          Article 4 of the Convention on the Rights of Persons with Disabilities imposes general obligations 'to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability'. That includes an obligation to promote opportunity regarding employment. There are further State obligations under Article 27 regarding work and employment. Article 27 obliges States to recognise the rights of persons with a disability to work on an equal basis with others, and to take appropriate steps to protect that right, including through legislation. Article 27(d) also specifically requires States to 'enable persons with disabilities to have effective access to general technical and vocational guidance programmes, placement services and vocational and continuing training'.

 

-          Article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) requires States Parties to take steps to achieve the 'full realization' of the rights enumerated within ICESCR, including the right to work guaranteed by Article 6 of ICESCR through the provision of 'technical and vocational guidance and training programs, policies and techniques.'

 

-          Article 1(1) of the International Labour Organization's Convention concerning Employment Policy (ILO Convention 122) requires Members to pursue 'an active policy designed to promote full, productive and freely chosen employment.' Article 1(2) specifies that this policy shall aim to ensure that (among other things) 'there is work for all who are available for and seeking work'. Article 2 further requires Members to 'decide on and keep under review ... the measures adopted for attaining the objectives specified in Article 1', and to 'take such steps as may be needed ... for the application of these measures'.  

 

-          Article 1(1) of the International Labour Organization's Convention concerning Vocational Guidance and Vocational Training in the Development of Human Resources (ILO Convention 142) requires Members to develop and adopt 'comprehensive and co-ordinated policies and programmes of vocational training'. Article 2 requires Members to establish and develop 'open, flexible and complementary systems of general, technical and vocational education, educational and vocational guidance and vocational training'. Article 3 states that 'policies and programmes shall be pursued by methods that are appropriate to national conditions. Article 4 requires Members to gradually extend, adapt and harmonise 'vocational training systems to meet the needs for vocational training throughout life of both young persons and adults in all sectors of the economy and branches of economic activity and at all levels of skill and responsibility'. 

 

The new Incentives System supports individuals to gain skills, experience and qualifications that can lead to increased opportunities for employment. These proposed incentives have been designed to promote full, productive and freely chosen employment for Australian Apprentices. They also aim to encourage employers to commence training for these apprentices and retain them until they complete their qualification.

 

The program also includes measures to support access to apprenticeships for people with a disability.

 

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Financial Framework (Supplementary Powers) Amendment (Employment and Workplace Relations Measures No. 1) Regulations 2022

 

This disallowable legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the legislative instrument

 

Section 32B of the Financial Framework (Supplementary Powers) Act 1997 (the FF(SP) Act) authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Financial Framework (Supplementary Powers) Regulations 1997 (the FF(SP) Regulations) and to make, vary and administer arrangements and grants for the purposes of programs specified in the Regulations. Schedule 1AA and Schedule 1AB to the FF(SP) Regulations specify the arrangements, grants and programs. The powers in the FF(SP) Act to make, vary or administer arrangements or grants may be exercised on behalf of the Commonwealth by Ministers and the accountable authorities of non-corporate Commonwealth entities, as defined under section 12 of the Public Governance, Performance and Accountability Act 2013.

 

The Financial Framework (Supplementary Powers) Amendment (Employment and Workplace Relations Measures No. 1) Regulations 2022 amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on certain activities administered by the Department of Employment and Workplace Relations.

 

This disallowable legislative instrument makes the following amendments to Part 4 of Schedule 1AB:

*         amends table item 359 'Foundation Skills for Your Future Program'and

*         adds table item 554 'Australian Apprenticeships Incentive System'.

 

Amended table item 359 - Foundation Skills for Your Future Program

 

The amended table item 359 establishes legislative authority for government spending on the Foundation Skills for Your Future Program (the program), which aims to support individuals with low language, literacy, numeracy and digital literacy (LLND) skills to allow them to gain the skills they need to engage with further training and employment opportunities to participate, or more fully participate, in the workforce and the community.

 

The Australian Government announced the program in the 2019-20 Budget as an initiative under the Skills Package - Delivering Skills for Today and Tomorrow with funding of $52.5 million over four years from 2019-20. The program commenced in May 2020 with the first training projects under the program commencing in September 2020. Around 100 training projects have been approved for funding under the program to date.

 

The program allows up to 11,000 eligible Australians to develop their LLND skills by engaging with training opportunities. The program supports eligible individuals to identify LLND skill deficits, and to address identified deficits through access to either accredited or non-accredited training. Eligible individuals are supported to identify and address skills needs to help them up-skill or re-skill for new roles, to obtain and retain secure employment and to undertake further education and training.

 

The program will be expanded to widen the eligibility criteria so that more Australians, including persons who are employed or recently unemployed can benefit and continue getting support with LLND training. The program will also enable the development and delivery of teaching resources that will be made available online.

 

Human rights implications

 

The amended table item 359 engages the following rights:

• the right to education - Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with article 2; and
• the right to work - Article 6 of the ICESCR.

 

Right to education

 

Article 2 of the ICESCR requires that each State Party to the Covenant undertakes to take steps to the maximum of its available resources, especially economic and technical, to realise the rights recognised in the Covenant, particularly through legislative measures.

 

The amended table item 359 engages the right to education, contained in Article 13 of the ICESCR. Article 13 provides that vocational education is a part of secondary education (Article 13(2)(b)), and secondary education must be available and accessible to all on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education (Article 13(2)(b)).

 

The amended table item 359 will promote the right of eligible people to education by assisting individuals to develop language, literacy, numeracy and digital skills through the vocational education and training system in Australia.

 

The outcomes of the program will also assist to inform the government on how to improve existing policies of vocational guidance and vocational training. The amended table item 359 is compatible with and promotes the right to education.

 

Right to work

 

The amended table item 359 also engages the right to work in Article 6 of the ICESCR. Article 6 recognises the right to work, which includes the right of everyone to have the opportunity to earn their living by work which they freely choose or accept. Article 6(2) provides the steps to be taken by States Parties to achieve the full realisation of this right including providing technical and vocational education and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding political and economic freedom to the individual.

 

The objective of the program is consistent with the intention of improving employment outcomes for individuals. In particular, the program will assist individuals to develop language, literacy, numeracy and digital literacy skills through the vocational education and training systems in Australia to improve their opportunity to engage with employment in modern and future workplaces. As such, the Program provides the opportunity for individuals to upskill and engage in productive and freely chosen employment.

 

The amended table item 359 is compatible with and promotes the right to work.

 

Conclusion

 

The amended table item 359 is compatible with human rights because it promotes the protection of human rights.

 

Table item 554 - Australian Apprenticeships Incentive System

 

New table item 554 establishes legislative authority for government spending on the Australian Apprenticeships Incentive System (Incentives System), which aims to support Australian Apprenticeship commencement levels and address low retention and completion rates, with a focus on priority occupations. Providing financial and non-financial incentives to eligible employers and Australian Apprentices will support economic recovery while addressing skill shortages in Australia.

 

The Incentives System is an uncapped and demand-driven program, which will encourage genuine opportunities for skills-based training and development of Australian Apprentices by providing:

•         financial incentives to employers who engage eligible Australian Apprentices, including wage subsidies or hiring credits depending on eligibility;

•         additional financial incentives for employers that engage an eligible Australian Apprentice with a disability;

•         payments to Australian Apprentices to encourage individuals to take up and complete an Australian Apprenticeship;

•         financial incentives to Australian Apprentices to assist with expense of relocating from their parent or guardian's home to complete an Australian Apprenticeship and those who must travel a significant distance to retain an Australian Apprenticeship; and

•         registered training organisations (RTOs) with a financial incentive to provide additional support and assistance for off-the-job training to eligible Australian Apprentices with disability.

 

Current funding of $2.4 billion will be available to support the roll out of the Incentives System over four years from 2021-22.

 

Human rights implications

 

Table item engages the following rights:

• the right to education - Article 13 of the ICESCR, read with article 2, Article 1 and 2 of the International Labour Organization's Convention concerning Vocational Guidance and Vocational Training in the Development of Human Resources
  (ILO Convention No. 142) and Article 28 of the Convention on the Rights of the Child (CRC), read with Article 4;
• the right to work - Article 6 of the ICESCR and Article 1 of the International Labour Organization's Convention concerning Employment Policy (ILO Convention No. 122); and
• the rights of people with disability - Articles 5, 8, 24 and 27 of the Convention on the Rights of Persons with Disabilities (CRPD), read with Article 4.

 

Right to education

 

Article 2 of the ICESCR requires States Parties to take steps to progressively achieve the full realisation of the rights recognised in the ICESCR by all appropriate means. Article 4 of the CRC requires States Parties to undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the CRC.

 

Table item 554 engages the right to education, contained in Article 13 of the ICESCR.
Article 13(1) recognises the right of everyone to an education. It also provides that vocational education is a part of secondary education (Article 13(2)(b)), and secondary education must be available and accessible to all on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education (Article 13(2)(c)).

 

Table item 554 also engages Article 1(1) of the ILO Convention No.142, which provides that each member shall adopt and develop comprehensive and coordinated policies and programs of vocational guidance and vocational training, closely linked with employment. It also engages Article 2 which states that each member shall develop general, technical and vocation education, educational and vocational guidance and vocational training.

 

The right of children to education in Articles 28 of the CRC encourages:

•         the development of different forms of secondary education, including general and vocational education;

•         making vocational education information and guidance available and accessible to all children; and

•         taking appropriate measures such as the introduction of free education and offering financial assistance in case of need.

 

Table item 554 promotes the right to education for all people, including children through the provision of financial and non-financial incentives. These incentives are designed to encourage apprenticeships to commence and complete an Australian apprenticeship. It will do so by providing direct payments to apprenticeships twice a year for their first two years, providing weekly allowance to those who must move away from home or travel significant distances and provide non-financial support. This will enable apprentices to build their career by equipping them with a high-demand skillset and it will also assist employers with the cost of employing an apprentice in their organisation.

 

Right to work

 

Table item 554 engages Article 1(1) of ILO Convention No. 122, which provides that, with a view to stimulating economic growth and development, raising levels of living standards, meeting workforce requirements and overcoming unemployment and underemployment, each member shall declare and pursue, as a major goal, an active policy designed to promote full, productive and freely chosen employment.

 

Table item 554 also engages Article 6 of the ICESCR, which recognises the right to work including the right of everyone to have the opportunity to gain their living by work which they freely choose or accept. Article 6(2) provides that the steps to be taken by States Parties to achieve the full realisation of this right include providing technical and vocational guidance and training programs, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedom to the individual.

 

Table item 554 promotes the right to work as expressed in the relevant articles of the treaties above by providing apprentices with increased opportunities to access education and training that is targeted as addressing skill shortages in the current economy. Payments to Australian Apprentices will support individuals to pursue vocational education and training through to completion of a qualification, providing increased opportunities for employment in the future. This contributes to the development of a highly skilled and relevant Australian workforce that supports economic, social and cultural development.

 

Rights of people with disability

 

Table item 554 engages Article 4 of the CRPD, which seeks the promotion and full realisation of human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. The rights of people with disability are also found in Articles 5, 8, 24 and 27 of the CRPD. Article 27(1)(d) outlines the right for persons with disabilities to effectively access general technical and vocational guidance programmes, placement services and vocation and continued training. 

 

Table item 554 promotes the rights of persons with disability by actively encouraging employers to hire Australian Apprentices with a disability. They do this by providing additional wage support incentives to those organisations. Additionally, to further support the rights of persons with disabilities, this initiative will provide RTOs with financial assistance so that they can provide additional tutorial, mentoring and interpreter assistance to Australian Apprentices with disability.

 

Conclusion

 

Table item 554 is compatible with human rights because it promotes the protection of human rights.

 

 

 

 

Senator the Hon Katy Gallagher

Minister for Finance