2022-2023

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

SENATE

 

Jobs and Skills Australia Amendment Bill 2023

 

REVISED EXPLANATORY MEMORANDUM

 

(Circulated by authority of the Minister for Skills and Training, the Hon Brendan O’Connor MP)

 

THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE HOUSE OF REPRESENTATIVES

 

TABLE OF CONTENTS

GLOSSARY . 1

OUTLINE . 1

FINANCIAL IMPACT STATEMENT . 2

CONSULTATION .. 2

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS . 3

NOTES ON CLAUSES . 8

Clause 1: Short title . 8

Clause 2: Commencement . 8

Clause 3: Schedules . 8

Schedule 1 - Amendments to the Jobs and Skills Australia Act 2022 . 8

 

 

 

GLOSSARY

Abbreviation	Definition
Act	Jobs and Skills Australia Act 2022
Acts Interpretation Act	Acts Interpretation Act 1901
Bill	Jobs and Skills Australia Amendment Bill 2023
Department	Department of Employment and Workplace Relations
JSA Commissioner	Jobs and Skills Australia Commissioner
JSA Deputy Commissioner	Jobs and Skills Australia Deputy Commissioner
JSA Director	Jobs and Skills Australia Director
Legislation Act	Legislation Act 2003
PGPA Act	Public Governance, Performance and Accountability Act 2013
Secretary	Secretary of the Department
SES	Senior Executive Service
VET	Vocational education and training

 

JOBS AND SKILLS AUSTRALIA AMENDMENT BILL 2023

OUTLINE

The purpose of the Jobs and Skills Australia Amendment Bill 2023 (the Bill) is to amend the Jobs and Skills Australia Act 2022 (the Act) to provide for the permanent governance arrangements and functions of Jobs and Skills Australia (a statutory body within the Department of Employment and Workplace Relations (the Department), supported by staff of the Department, but independently providing advice ). The Bill also makes a number of related amendments to the Act.

Jobs and Skills Australia was established by the Act with interim governance arrangements and functions. This enabled a Jobs and Skills Australia Director (JSA Director) to be appointed and for Jobs and Skills Australia to commence its critical work immediately, while extensive consultation with stakeholders on the permanent model for Jobs and Skills Australia continued.

Following that consultation, this Bill amends the Act to:

·          rename the position JSA Director, as the Jobs and Skills Australia Commissioner (JSA Commissioner);

·          provide for up to two Jobs and Skills Australia Deputy Commissioners (JSA Deputy Commissioners) whose function is to assist the JSA Commissioner;

·          provide for the Minister to establish a Ministerial Advisory Board - consisting of a Chair; two members representing the States and Territories; four members representing employee organisations; four members representing employer organisations; and not more than four other members. The function of the Ministerial Advisory Board will be to advise the Minister and the JSA Commissioner, in relation to the performance of the functions of Jobs and Skills Australia;

·          require the Minister to commence a review into Jobs and Skills Australia within two years of the amendments in this Bill commencing - the review must subsequently be tabled in both Houses of Parliament; and

·          establish in full the functions of Jobs and Skills Australia, including by providing that it has the additional functions of:

                                i.             providing advice to the Minister or Secretary in relation to the impact of workplace arrangements, including insecure work, on economic and social outcomes;

                               ii.             identifying labour market imbalances and analysing the demand and supply of skills;

                             iii.             analysing skills needs and workforce needs, including in regional, rural and remote Australia, and in relation to migration;

                             iv.             undertaking studies, including on opportunities to improve employment, vocational education and training (VET) and higher education outcomes for cohorts of individuals that have historically experienced labour market disadvantage and exclusion ;

                               v.             contributing to industry consultation forums; and

                             vi.             in consultation with the Minister and other stakeholders, preparing and publishing an annual work plan.

 

The amendments reflect the consultation undertaken with stakeholders. They will ensure that Jobs and Skills Australia is supported by appropriate governance and advisory mechanisms so that the VET, higher education and workforce needs of all participants in the Australian economy are at the forefront when the Government is considering workforce, employment and education policies and programs.

In providing advice, and undertaking research and analysis, Jobs and Skills Australia will have regard to the many systems that contribute to a well-functioning labour market and their impact on it, including employment, skills and training, education, workplace relations, and migration.   

FINANCIAL IMPACT STATEMENT

There will be minimal financial impact from the introduction of the Bill. Through the 2022-23 Budget, the Government invested an additional $12.9 million to support the establishment of Jobs and Skills Australia over three years to underpin the significant new consultation and engagement requirements for Jobs and Skills Australia.

CONSULTATION

Broad consultation has occurred on the proposed permanent model for Jobs and Skills Australia, including feedback from the Senate Committee inquiry into the preceding Jobs and Skills Australia Bill 2022, the Jobs and Skills Summit, discussions and written correspondence with State and Territory governments, stakeholder roundtables, a discussion paper consultation process and other engagement forums, including with industry, training, union, education and regional peak body representatives.

The diverse feedback on Jobs and Skills Australia’s functions, governance arrangements and ways of working with tripartite stakeholders has helped inform the Bill.

Insights will also be considered and incorporated into non-legislative elements of Jobs and Skills Australia’s model including governance operations and consultation and engagement arrangements when exercising its functions.

 

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Jobs and Skills Australia Amendment Bill 2023

The Jobs and Skills Australia Amendment Bill 2023 (the Bill) 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 Bill

The purpose of the Bill is to amend the Jobs and Skills Australia Act 2022 (the Act) to provide for the permanent governance arrangements and functions of Jobs and Skills Australia (a statutory body within the Department of Employment and Workplace Relations (the Department), supported by staff of the Department, but independently providing advice ). The Bill also makes a number of related amendments to the Act.

Jobs and Skills Australia was established by the Act with interim governance arrangements and functions. This enabled a Jobs and Skills Australia Director (JSA Director) to be appointed and for Jobs and Skills Australia to commence its critical work immediately, while extensive consultation with stakeholders on the permanent model for Jobs and Skills Australia continued.

Following that consultation, this Bill amends the Act to: 

·          rename the position JSA Director, as the Jobs and Skills Australia Commissioner (JSA Commissioner);

·          provide for up to two Jobs and Skills Australia Deputy Commissioners (JSA Deputy Commissioners) whose function is to assist the JSA Commissioner;

·          provide for the Minister to establish a Ministerial Advisory Board - consisting of a Chair; two members representing the States and Territories; four members representing employee organisations; four members representing employer organisations; and not more than four other members. The function of the Ministerial Advisory Board will be to advise the Minister and the JSA Commissioner, in relation to the performance of the functions of Jobs and Skills Australia;

·          require the Minister to commence a review into Jobs and Skills Australia within two years of the amendments in this Bill commencing - the review must subsequently be tabled in both Houses of Parliament; and

·          establish in full the final functions of Jobs and Skills Australia, including by providing that it has the additional functions of:

 

                                i.             providing advice to the Minister or Secretary in relation to the impact of workplace arrangements, including insecure work, on economic and social outcomes;  

                               ii.             identifying labour market imbalances and analysing the demand and supply of skills;

                             iii.             analysing skills needs and workforce needs, including in regional, rural and remote Australia, and in relation to migration;  

                             iv.             undertaking studies, including on opportunities to improve employment, vocational education and training (VET) and higher education outcomes for cohorts of individuals that have historically experienced labour market disadvantage and exclusion ;

                               v.             contributing to industry consultation forums; and

                             vi.             in consultation with the Minister and other stakeholders, preparing and publishing an annual work plan.

 

The amendments reflect the consultation undertaken with stakeholders. They will ensure that Jobs and Skills Australia is supported by appropriate governance and advisory mechanisms so that the VET, higher education and workforce needs of all participants in the Australian economy are at the forefront when the Government is considering workforce, employment and education policies and programs.

In providing advice, and undertaking research and analysis Jobs and Skills Australia will have regard to the many systems that contribute to a well-functioning labour market and their impact on it, including employment, skills and training, education, workplace relations and migration.

Human rights implications

The Bill engages the following rights:

·          the right to education - Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); and

·          the right to work - Article 6 of the ICESCR

Right to education

The Bill engages the right to education contained in Article 13 of the ICESCR. Article 13(2)(b) states that secondary education, including technical and vocational secondary education shall be made generally available and accessible to all by every appropriate means and, in particular, by the progressive introduction of free education. Article 13.2(c) states that higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education.

VET and higher education should enable students to acquire knowledge and skills which contribute to their employability and enhance their productivity.

By amending the functions of Jobs and Skills Australia, the Bill promotes the right to education because it both enables Jobs and Skills Australia to provide advice to the Minister or Secretary in relation to Australia’s current, emerging and future skills and training needs and priorities including in relation to VET and higher education; and gives Jobs and Skills Australia the additional function of identifying labour market imbalances and analysing the demand and supply of skills .

These additional functions, particularly those relating to identifying labour market imbalances, will strengthen the quality of advice and analysis provided and assist in informing the Government on areas in which skills needs are most prevalent. This includes advice concerning areas of education, particularly VET, which require Government policy consideration.

Jobs and Skills Australia will also be able to publish reports concerning the analysis undertaken in respect of these functions. This will allow stakeholders, including State and Territory governments, VET and higher education providers and students to inform themselves of identified labour market imbalances and skills which are in demand. These stakeholders will therefore be empowered to offer or undertake educational pursuits in respect of those skills identified by Jobs and Skills Australia as being in significant demand.

These and pre-existing functions of Jobs and Skills Australia will be further enhanced by the provision of up to two JSA Deputy Commissioners (who will assist the JSA Commissioner); and establishing a Ministerial Advisory Board to advise the Minister and the JSA Commissioner, in relation to the performance of the functions of Jobs and Skills Australia. The provision of this advice and assistance will strengthen the quality and timeliness of the analysis and advice that Jobs and Skills Australia is able to undertake and provide concerning skills needs and priorities, and VET and higher education pathways and outcomes. This will further enhance the extent to which Jobs and Skills Australia is able to inform Government and stakeholders of skills needs, and matters relating to VET and higher education including in respect of cohorts of individuals that have historically experienced labour market disadvantage and exclusion.

The Bill will further promote engagement with stakeholders by providing for two members representing the interests of the States and Territories, and eight members representing employer and employee organisations (four each) to sit on the newly established Ministerial Advisory Board. This will ensure the views of State and Territory governments, as well as employer and employee organisations, concerning VET and higher education are given due consideration and attention by Jobs and Skills Australia. There will be up to an additional four members and a requirement that each member have the requisite level of experience in one or more of the specified fields set out in the Bill. This will ensure a diverse range of stakeholder views are available to Jobs and Skills Australia.

The Bill therefore would promote, and have a positive impact on, the right to education. 

The Bill is compatible with the right to education.

 

Right to work 

The Bill also engages the right to work contained in Article 6(1) of the ICESCR . Article 6(1) recognises the right to work, which includes the right to the opportunity to gain a living by work which a person freely chooses or accepts. Article 6(2) states that the steps to be taken shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual. 

The Bill promotes the right to work because it enables Jobs and Skills Australia to provide advice to the Minister or Secretary in relation to the impact of workplace arrangements, including insecure work on social and economic outcomes; and for the purposes of identifying labour market imbalances. These additional functions will strengthen the quality of advice and analysis provided in relation to Australia’s labour market and skills sector. This will assist in informing the Government on areas in which labour and skills needs are most prevalent, and will allow Jobs and Skills Australia to analyse emerging labour sectors, including in relation to insecure work.

Jobs and Skills Australia will also be able to publish reports concerning the analysis undertaken in respect of the impact of workplace arrangements and labour market imbalances. This will allow stakeholders, including State and Territory governments, employers (whether small, medium or large business) and employees to inform themselves of identified labour market imbalances and analysis concerning workplace arrangements. These stakeholders will therefore be empowered to give consideration to how workplace arrangements and specified labour market imbalances may impact employment outcomes.

These new functions of Jobs and Skills Australia will be further enhanced by providing for two JSA Deputy Commissioners (who will assist the JSA Commissioner); and establishing a Ministerial Advisory Board to advise the Minister and the JSA Commissioner in relation to the performance of the functions of Jobs and Skills Australia. The provision of this advice and assistance will strengthen the quality application of the advice that Jobs and Skills Australia is able to provide concerning labour market priorities, thereby further enhancing the extent to which Jobs and Skills Australia is able to inform Government and stakeholders of matters concerning the labour market, including in demand jobs and occupations. Additionally, the JSA Deputy Commissioners and Ministerial Advisory Board will assist Jobs and Skills Australia and the JSA Commissioner in respect of Jobs and Skills Australia’s pre-existing functions, including those concerning emerging and growing industries and occupations. This will further promote the right to work by allowing JSA to analyse and identify labour market shortages and opportunities for employment .

The Bill will further promote engagement with stakeholders by providing for two members representing the interests of the States and Territories, and eight members representing employer and employee organisations (four each) to sit on the newly established Ministerial Advisory Board. There will be up to an additional four members and a requirement that each member have the requisite level of experience in one or more of the specified fields set out in the Bill. This will ensure a diverse range of stakeholder views are available to Jobs and Skills Australia. This will ensure that State and Territory governments, as well as employee and employer organisations will be able to present their views concerning employment outcomes and the labour market, thereby furthering the capacity for Jobs and Skills Australia to provide more fulsome advice concerning Australia’s labour demands.

The Bill therefore would promote, and have a positive impact on, the right to work. 

The Bill is compatible with the right to work. 

Conclusion

The Bill is compatible with human rights because it promotes the protection of human rights and does not limit any human rights.

Minister for Skills and Training

The Hon Brendan O’Connor MP

JOBS AND SKILLS AUSTRALIA AMENDMENT BILL 2023

NOTES ON CLAUSES

Clause 1 : Short title

1.       This is a formal provision specifying the title of the Act to be the Jobs and Skills Australia Amendment Act 2023.

Clause 2 : Commencement

2.       The table in this clause specifies that the whole of the Bill, once enacted, commences on the day after the Act receives the Royal Assent.

Clause 3 : Schedules

3.       This clause provides that legislation specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1 - Amendments to the Jobs and Skills Australia Act 2022

Item 1: Section 3

4.       This item omits “such as the role of the JSA Director and administrative matters” from the simplified outline of the Act at section 3 of the Jobs and Skills Australia Act 2022 (the Act) and substitutes it with “such as the establishment of the JSA Commissioner, JSA Deputy Commissioners and Ministerial Advisory Board”. This reflects the change in title of the JSA Director to the JSA Commissioner, the new role of JSA Deputy Commissioners, and the establishment of the Ministerial Advisory Board.

Item 2: Section 4 (after the heading)

5.       This item inserts the standard introductory words “In this Act:” such that it is clear that the terms defined in section 4 of the Act are defined for the purposes of the Act.

Item 3: Section 4

6.       This item inserts into section 4 (definitions) of the Act terms that are used in the Bill.

Chair means the Chair of the Ministerial Advisory Board.

Commissioner means the JSA Commissioner or a JSA Deputy Commissioner.

JSA Commissioner means the Jobs and Skills Australia Commissioner.

JSA Deputy Commissioner means a Jobs and Skills Australia Deputy Commissioner.

 

Item 4: Section 4 (definition of JSA Director)

7.       This item repeals the definition of JSA Director. This reflects the change in title of the JSA Director to the JSA Commissioner. 

Item 5: Section 4 (definition of Ministerial Advisory Board)

8.       This item defines Ministerial Advisory Board to mean the Ministerial Advisory Board established under the new section 16A.

Item 6: Section 5

9.       This item adds paragraph (c) to the simplified outline of Part 2 of the Act, which provides that one of the main functions of Jobs and Skills Australia is to consult broadly on the performance of its functions.

 

10.   Section 10 of the Act describes in greater detail the obligation imposed on Jobs and Skills Australia to consult with other bodies in the performance of its functions. This can include key partners in State and Territory governments, employers, unions, training providers, universities and other industry stakeholders. For instance, if invited to do so, Jobs and Skills Australia would participate in forums such as the Skills and Workforce Ministerial Council, which consists of Skills Ministers from the Commonwealth and each State and Territory government.

Item 7: Section 7

11.   This item repeals section 7 of the Act and substitutes it with a new section 7 which describes the composition of Jobs and Skills Australia. Section 7 provides that Jobs and Skills Australia will consist of:

 

(a)     the JSA Commissioner;

(b)    the JSA Deputy Commissioners;

(c)     staff made available to assist the JSA Commissioner under sections 14 and 15.

 

12.   Item 7 reflects the change in title of the JSA Director to the JSA Commissioner and the newly established position of JSA Deputy Commissioners.

Item 8: Section 8 (note)

13.   Item 8 of the Bill repeals the note below section 8 of the Act which explains the effect of that section, and substitutes it with a new note reflecting the change in title of the JSA Director to the JSA Commissioner, and the newly established position of JSA Deputy Commissioners.

 

14.   Section 8 of the Act provides that for the purposes of paragraph (a) of the definition of Department of State in section 8 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act), Jobs and Skills Australia is prescribed in relation to the Department of Employment and Workplace Relations (the Department). 

Item 9: (Subsection 9(1))

15.   This item omits “(1)” from subsection 9(1) of the Act. This is a technical amendment that reflects the repeal of subsections 9(2) to (4) of the Act (see item 14 below).

Item 10: Subparagraph 9(1)(a)(ii)

16.   Item 10 inserts “,VET and higher education” after “apprenticeships” into existing subparagraph 9(1)(a)(ii) of the Act. The effect of that amendment is that one of Jobs and Skills Australia’s functions is to provide advice to the Minister or the Secretary of the Department in relation to:

 

Australia’s current, emerging and future skills and training needs and priorities (including in relation to apprenticeships , VET and higher education );

 

17.   This change reflects the significance of VET and higher education to Australia’s current and future training needs and priorities. In accordance with this function Jobs and Skills Australia might for example, provide advice regarding the demand for, and availability of, workers with particular skills, training or qualifications across the states, territories, industries and occupations.

Item 11: Subparagraphs 9(1)(a)(iv) and (vi)

18.   Item 11 repeals subparagraphs 9(1)(a)(iv) and (vi) of the Act. Subparagraph 9(1)(a)(iv) provides that one of Jobs and Skills Australia’s functions is to provide advice to the Minister or Secretary of the Department in relation to issues relating to skills and training, and workforce needs, in regional, rural and remote Australia. This subparagraph is to be replaced by a broader function to be included in new paragraph 9(cb) (item 13 below).

 

19.   Subparagraph 9(1)(a)(vi) of the Act, provides that one of Jobs and Skills Australia’s functions is to provide advice to the Minister or the Secretary of the Department in relation to opportunities to improve employment, VET and higher education outcomes for cohorts of individuals that have historically experienced labour marked disadvantage and exclusion. This subparagraph is to be replaced with a similar function for Jobs and Skills Australia to undertake studies about these matters in new paragraph 9(cc) (item 13 below).

 

Item 12: At the end of paragraph 9(1)(a)

20.   Item 12 adds subparagraph (viii) to paragraph 9(a) of the Act, so that Jobs and Skills Australia has a further function, being to provide advice to the Minister or the Secretary in relation to:

 

the impact of workplace arrangements, including insecure work, on economic and social outcomes;

 

21.   Insecure work is not defined in the Bill. To support its analysis, Jobs and Skills Australia will have regard to the continually evolving nature of insecure work and related case law.

 

22.   For the purposes of providing the advice contemplated by new subparagraph 9(a)(viii), it is expected that Jobs and Skills Australia will build an evidence base about these matters. It will do so in accordance with existing subparagraph 9(1)(g)(ii) of the Act which provides that Jobs and Skills Australia has any other function that is incidental or conducive to the performance of its functions set out in paragraphs 9(1)(a) to (f).

Item 13: After paragraph 9(1)(c)

23.   Item 13 inserts four new paragraphs after paragraph 9(c) of the Act that further expand upon the functions of Jobs and Skills Australia. Together these paragraphs provide that Jobs and Skills Australia has additional functions to:

 

·          identify labour market imbalances and analyse the demand and supply of skills (paragraph 9(ca));

·          analyse skills needs and workforce needs, including in regional, rural and remote Australia, and in relation to migration (paragraph 9(cb));

·          undertake studies, including on opportunities to improve employment, VET and higher education outcomes for cohorts of individuals that have historically experienced labour market disadvantage and exclusion (paragraph 9(cc)); and

·          contribute to industry consultation forums (paragraph 9(cd)).

 

24.   Paragraph 9(ca) provides Jobs and Skills Australia with a new function of identifying labour market imbalances and analysing the demand and supply of skills. As part of this function, Jobs and Skills Australia, might for instance, develop a national skills supply and demand model.

 

25.   In accordance with paragraph 9(cb), Jobs and Skills Australia will have a function to analyse skills needs and workforce needs including in regional, rural and remote Australia, and in relation to Australia’s migration program. In reliance on this function, Jobs and Skills Australia might analyse particular workforce needs in a rural or remote area of Australia. This might for instance, involve an analysis of the need for seasonal workers in various regional or remote areas. In addition, this function would permit Jobs and Skills Australia to identify how particular skills needs could be met through the migration program.

 

26.   Paragraph 9(cc) replaces a similar function Jobs and Skills Australia has that is to be repealed by item 11 of the Bill. The function is currently advisory in nature - the new function will permit Jobs and Skills Australia to undertake studies, including on opportunities to improve employment, VET and higher education outcomes for cohorts of individuals that have historically experienced labour market disadvantage and exclusion. Some of these cohorts are marginalised by way of age, health, gender, or background.  This could, for example, include women, over-55s, people with disability, youth, unpaid carers, First Nations Australians, and culturally and linguistically diverse communities.   Other studies Jobs and Skills Australia may undertake as part of this function could include comprehensive workforce and occupational studies for government funded services, such as aged care.

 

27.   Paragraph 9(cd) provides Jobs and Skills Australia with a new function of contributing to industry consultation forums. For instance, Jobs and Skills Australia will consult with Jobs and Skills Councils to strengthen tripartite input into the national evidence base and to facilitate the Jobs and Skills Councils’ role in determining sectoral workforce needs, defining job roles, mapping pathways, and developing fit-for purpose qualifications and micro-credentials.

Item 14: Subsections 9(2) to (4)

28.   Item 14 repeals subsections 9(2) to (4) of the Act. These subsections are not being removed from the Act, but are being moved to Part 5 of the Act where they better fit (see item 34 below).

Item 15: At the end of Part 2

29.   At the end of Part 2 of the Act, item 15 adds section 10A which requires the JSA Commissioner to prepare a work plan, in writing, for each financial year beginning on or after 1 July 2023. Subsection 10A(2) requires the work plan for a financial year to set out the key outcomes and priorities for the JSA Commissioner for the financial year. It is expected that the work plan will include the key studies for the year, including workforce planning, cohort and other one-off studies.

 

30.   Subsection 10A(3) requires the JSA Commissioner, in preparing the work plan, to consult with the Minister and the Ministerial Advisory Board, and to invite submissions from the public. The JSA Commissioner may also consult with any other Ministers and any other person that the JSA Commissioner considers appropriate.

 

31.   Subsection 10A(4) requires the JSA Commissioner to publish the work plan on the Jobs and Skills Australia’s website as soon as practicable after it has been finalised. Subsection 10A(5) provides that a work plan prepared under subsection 10A(1) is not a legislative instrument. This provision is included to assist readers, as a work plan is not a legislative instrument within the meaning of section 8 of the Legislation Act 2003 (Legislation Act). 

Item 16: Part 3 (heading)

32.   This item omits “JSA Director and staff assisting” from the heading of Part 3 of the Act and substitutes it with “JSA Commissioner, JSA Deputy Commissioners, staff assisting and Ministerial Advisory Board”. This reflects the change in title of the JSA Director to the JSA Commissioner, and the newly established positions of JSA Deputy Commissioners, and the Ministerial Advisory Board.

Item 17: Section 11 (paragraph beginning “This Part”)

33.   This item repeals the simplified outline to Part 3 of the Act and substitutes it with a new simplified outline. The new outline reflects the change in title of the JSA Director to the JSA Commissioner and the new positions of JSA Deputy Commissioners. It also reflects the establishment of the Ministerial Advisory Board. This outline is not intended to be comprehensive. It is intended that readers should rely on the substantive provisions.

Item 18: Section 12 (heading)

34.   This item omits “JSA Director” from the heading to section 12 of the Act and substitutes it with “JSA Commissioner”. This reflects the change in title of the JSA Director to the JSA Commissioner.

Item 19: Section 12

35.   This item omits “Jobs and Skills Australia Director” from section 12 of the Act and substitutes it with “Jobs and Skills Australia Commissioner” such that this section will provide for there to be a Jobs and Skills Australia Commissioner. This item reflects the change in title of the JSA Director to the JSA Commissioner.

Item 20: Section 13 (heading)

36.   This item omits “JSA Director” from the heading to section 13 of the Act and substitutes it with “JSA Commissioner”, such that the heading now reads “Functions of the JSA Commissioner”. This item reflects the change in title of the JSA Director to the JSA Commissioner.

Item 21: Section 13

37.   Section 13 of the Act describes the functions of the JSA Director. Item 21

omits two references to “JSA Director” from section 13 and substitutes these with “JSA Commissioner”. These changes reflect the change in title of the JSA Director to the JSA Commissioner.

Item 22: JSA Deputy Commissioners

38.   This item inserts new sections 13A and 13B into the Act. Section 13A provides for there to be up to two Jobs and Skills Australia Deputy Commissioners.

 

39.   Subsection 13B(1) provides that the functions of a JSA Deputy Commissioner are:

 

·          to assist the JSA Commissioner in performing their functions;

·          any other function conferred on the JSA Deputy Commissioner by the rules, the Act, or any other law of the Commonwealth; and

·          to do anything incidental or conducive to the performance of the above functions.

 

40.   Subsection 13B(2) provides that in performing their functions the JSA Deputy Commissioner must comply with any directions of the JSA Commissioner. Such a direction could be written or verbal.

 

41.   Subsection 13B(3) provides that a direction under subsection 13B(2) is not a legislative instrument. Subsection 13B(3) is included to assist readers, as a direction under subsection 13B(2) is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act.

 

42.   In addition to the two JSA Deputy Commissioners proposed to be appointed under section 13A, it is also envisaged that there will be additional persons engaged under new section 15A of the Act (see item 30 below) to assist the Commissioner and guide Jobs and Skills Australia’s work on particular short term, time critical studies. These persons will work with other government agencies and stakeholder groups to ensure appropriate consultation on these studies is undertaken. It is anticipated that the persons engaged under section 15A of the Act will have specific expertise relevant to the particular study Jobs and Skills Australia is to undertake, and that the timely engagement of persons that section 15A will facilitate, will assist Jobs and Skills Australia in circumstances where it is necessary for a study to commence within a short period of time.

Item 23: Subsection 14(1)

43.   This item repeals subsection 14(1) of the Act and substitutes it with a new subsection reflecting the change in title of the JSA Director to the JSA Commissioner. New subsection 14(1) provides that “The staff assisting the JSA Commissioner are to be APS employees in the Department whose services are made available to the JSA Commissioner by the Secretary, in connection with the performance of any of the JSA Commissioner’s functions.”

Item 24: Subsection 14(2)

44.   Item 24 omits two references to “JSA Director” from subsection 14(2) of the Act and substitutes these with “JSA Commissioner”, such that new subsection 14(2) provides that “When performing services for the JSA Commissioner, the persons are subject to the directions of the JSA Commissioner”. In the context of subsection 14(2), “the persons” refers to the APS employees in the Department made available to the JSA Commissioner under subsection 14(1). This item reflects the change in title of the JSA Director to the JSA Commissioner.

Item 25: Section 15 (heading)

45.   This item omits “JSA Director” from the heading to section 15 of the Act, and substitutes it with “JSA Commissioner” such that the heading now reads “Other persons assisting the JSA Commissioner”. This item reflects the change in title of the JSA Director to the JSA Commissioner. 

Item 26: Subsections 15(1) and (2)

46.   This item repeals subsections 15(1) and (2) of the Act and substitutes them with new provisions which permit the JSA Commissioner to be assisted by employees of Commonwealth agencies other than the Department, and employees of a State or Territory government.

 

47.   New subsection 15(1) replaces references to the “JSA Director” with the “JSA Commissioner” reflecting the change in title of this position. It provides for the JSA Commissioner to be assisted by employees of other Commonwealth agencies whose services are made available to the JSA Commissioner. New subsection 15(1) otherwise remains unchanged.

 

48.   New subsection 15(2) permits the JSA Commissioner to make an arrangement with a State or Territory government or authority for staff to be made available to the JSA Commissioner. New subsection 15(3) permits an arrangement under subsection 15(2) to provide for the Commonwealth to reimburse a State or Territory with respect to the services of those staff.

 

49.   Subsection 15(4) provides that when performing services for the JSA Commissioner under this section, a person is subject to the directions of the JSA Commissioner. It largely reflects the previous subsection 15(2) which is now being repealed.

Item 27: Subsection 16(1)

50.   This item omits “JSA Director” from subsection 16(1) of the Act and substitutes it with “JSA Commissioner”, reflecting the change in title from the JSA Director to the JSA Commissioner.

Item 28: Subsection 16(1)

51.    This item omits “JSA Director’s” from subsection 16(1) and substitutes it with “JSA Commissioner’s”. This item, together with item 27, reflects the change in title of the JSA Director to the JSA Commissioner, such that subsection 16(1) now provides for the JSA Commissioner to engage, on behalf of the Commonwealth, consultants to assist in the performance of the JSA Commissioner’s functions.

Item 29: Subsection 16(2)

52.   Item 29 omits “JSA Director” from subsection 16(2) of the Act and substitutes it with “JSA Commissioner” such that new subsection 16(2) provides for the consultants engaged under subsection 16(1) to be engaged on the terms and conditions that the JSA Commissioner determines in writing. This item reflects the change in title of the JSA Director to the JSA Commissioner.

Item 30: After section 15

53.   After section 15 of the Act, this item adds new section 15A which provides for the JSA Commissioner to engage persons under a written agreement to assist the JSA Commissioner to perform or exercise their functions or powers. This section will supplement existing section 16 of the Act which limits the JSA Commissioner to engaging consultants.

Item 31: At the end of Part 3

54.   At the end of Part 3 of the Act, item 31 adds new sections 16A to 16G which provide for:

 

·          the establishment of a Ministerial Advisory Board to provide advice to the Minister and the JSA Commissioner (section 16A);

·          the appointment of appropriately qualified members to the Ministerial Advisory Board by the Minister (section 16B);

·          remuneration of members of the Ministerial Advisory Board to be determined by the Remuneration Tribunal, other than where the member is a full-time employee of the Commonwealth, or a State or Territory (section 16C);

·          the resignation or termination of a member of the Ministerial Advisory Board (sections 16D and 16E);

·          a requirement for members of the Ministerial Advisory Board to give written notice of all interests that conflict or could conflict with the performance of the member’s functions to the Minister (section 16F); and

·          a requirement for members to disclose an interest to the Ministerial Advisory Board and a process to deal with any such disclosure (section 16G).

 

55.   Subsection 16A(1) imposes an obligation on the Minister to establish a Ministerial Advisory Board to advise the Minister and the JSA Commissioner in relation to the performance of the functions of Jobs and Skills Australia. It is expected that the advice given to the Minister and the JSA Commissioner would include advice on Jobs and Skills Australia’s statutory functions; its long-term strategic direction; and matters for its prioritisation.

 

56.   Subsection 16A(2) requires that the Minister determine the:

 

·          the Ministerial Advisory Board’s terms of reference;

·          the terms and conditions of appointment of the members of the Ministerial Advisory Board, other than those provided for under Part 3 of the Act; and

·          the procedures to be followed by the Ministerial Advisory Board.

 

57.   In accordance with new subsection 16A(2), the Minister could establish procedures to be followed in circumstances where the Chair is absent, or for sub-committees to be formed for the purposes of the Board giving advice about a particular matter.

 

58.   Subsection 16A(3) requires the JSA Commissioner to have regard to any relevant advice given by the Ministerial Advisory Board in the performance of their functions and subsection 16A(4) provides that this does not limit the matters to which the JSA Commissioner may have regard.

 

59.   Subsection 16B(1) provides that the Ministerial Advisory Board consists of:

 

·          a Chair;

·          two members representing the interests of the States and Territories;

·          four members representing employee organisations;

·          four members representing employer organisations; and

·          not more than four other members.

 

60.   This subsection ensures that the interests of States and Territories will be appropriately represented; and that employer and trade union groups will have appropriate and equal representation on the Ministerial Advisory Board. It is intended that one of the members representing employer organisations will represent small business. The remaining four positions would not be available to representatives of employer or trade union groups, ensuring broad representation on the Ministerial Advisory Board.

 

61.   Subsection 16B(2) provides that each member of the Ministerial Advisory Board is to be appointed by the Minister by written instrument on a part-time basis. Subsection 16B(3) provides that a member holds office for the period specified in the instrument of appointment, which cannot exceed three years.

 

62.   Subsection 16B(4) sets out the experience or knowledge required by a person to be appointed to the Ministerial Advisory Board. A person is not eligible for appointment on the basis of their experience or knowledge, unless the Minister is satisfied that the person has substantial experience or knowledge in at least one of the following fields:

 

·          VET;

·          higher education;

·          industry;

·          employment;

·          industrial relations (including trade unions);

·          labour market analysis;

·          workforce planning;

·          economics;

·          governance;

·          regional, rural and remote Australia; or

·          any other appropriate field of expertise.

 

63.   The Minister may also appoint a person to the Ministerial Advisory Board if satisfied that the person has lived experience of disadvantage in the labour market, or experience as a representative of people with lived experience of disadvantage in the labour market.

 

64.   The purpose of subsection 16B(4) is to ensure that those appointed to the Ministerial Advisory Board have suitable experience or knowledge and are well placed to advise the Minister and the JSA Commissioner in relation to the performance of the JSA Commissioner’s functions. The appointment of members to the Board will strengthen tripartite leadership and ensure the Board represents broad interests, including government, employer organisations, trade unions and other interests, capable of finding solutions to skills and workforce challenges.

 

65.   Subsection 16B(5) provides that a member of the Ministerial Advisory Board is not an official of the Department for the purposes of the PGPA Act. This means that in the performance of their duty as a member, these persons will not have the duties and obligations of an official under that Act.

66.   Subsection 16B(6) requires a member of the Ministerial Advisory Board to act in an impartial and independent manner when giving advice to the Minister and the JSA Commissioner.

67.   Subsection 16C(1) provides that a Member of the Ministerial Advisory Board to be paid the remuneration that is determined by the Remuneration Tribunal or if no determination is in operation, the member is to be paid the remuneration that is specified in rules made under the Act.

68.   Subsection 16C(2) provides that a member is not entitled to be paid remuneration if he or she is employed or appointed on a full-time basis by:

 

·          a State;

·          a public statutory corporation established under a law of a State, other than a tertiary education institution; or

·          certain companies beneficially owned by a State or by a public statutory corporation.

 

69.   A note to subsection 16C(2) informs the reader that a member who is employed on a full-time basis by the Commonwealth or a Territory is also not entitled to be paid remuneration, consistent with sub-section 7(11) of the Remuneration Tribunal Act 1973 .

 

70.   Subsection 16C(3) sets out that a member is entitled to be paid the allowances that are specified in the rules made under the Act by the Minister.

 

71.   Subsection 16C(4) provides that section 16C, with the exception of subsection 16C(2), has effect subject to the Remuneration Tribunal Act 1973 . Subsection 16C(2) is specified as not being subject to the Remuneration Tribunal Act 1973 so as to ensure that a member who is engaged on a full-time basis and remunerated by a State or a prescribed state entity are not additionally remunerated as a member of the Ministerial Advisory Board.

 

72.   Section 16D provides for a member of the Ministerial Advisory Board to resign by giving the Minister written notice. The resignation takes effect on the day it is received by the Minister, or a later day specified in the notice.

 

73.   Section 16E permits the Minister to terminate the appointment of a member in specified circumstances. Under subsection 16E(1), this may include for misbehaviour, or if the member is unable to perform their duties because of physical or mental incapacity. Under subsection 16E(2), this may include if the member:

·          becomes bankrupt;

·          applies to take the benefit or any law for the relief of bankrupt or insolvent debtors;

·          compounds with their creditors;

·          assigns their remuneration for the benefit of their creditors; or

·          fails to act impartially and independently when giving advice.

 

74.   Section 16F requires a member of the Ministerial Advisory Board to give the Minister written notice of all interests, pecuniary or otherwise that the member has that could conflict with the proper performance of the member’s functions. This provision will ensure that the Minister is aware of, and can then take appropriate steps to manage any interest disclosed by a member. The management of such an interest could be in accordance with procedures determined by the Minister in accordance with new subparagraph 16A(2)(c).

 

75.   New section 16G provides for the disclosure of interests by a member to the Ministerial Advisory Board. In particular, subsection 16G(1) provides that a member who has an interest (pecuniary or otherwise) in a matter being considered or to be considered by the Board is under an obligation to disclose the nature of the interest to a meeting of the Board. Subsection 16G(2) provides that the disclosure must be made as soon as possible after the relevant facts have come to the knowledge of the member. This obligation is appropriate so that the Board are aware of any interests that a member has in a matter being considered, or about to be considered and can take appropriate steps to manage those interests in the context of that matter.

 

76.   Subsection 16G(3) requires the disclosure to be recorded in the minutes of the meeting. Paragraphs 16G(4)(a) and (b) further stipulate that unless the Ministerial Advisory Board otherwise determines, the member must not be present during any deliberation by the Board on the matter and must not take part in any decision of the Board with respect to the matter.

 

77.   New subsection 16G(5) provides that the Ministerial Advisory Board member making the disclosure must not be present during any deliberation of the Board for the purpose of making the determination under subsection 16G(4) and must not take part in making the determination. New subsection 16G(6) requires that a determination under subsection 16G(4) must be recorded in the minutes.

Item 32: Part 4-Administration

 

78.   Item 32 repeals Part 4 of the Act and substitutes it with a new Part 4 which deals with administrative matters relating to the office of the JSA Commissioner and JSA Deputy Commissioner. These amendments largely replicate existing provisions of the Act, but have regard to, and insert appropriate provisions relating to JSA Deputy Commissioners.

 

79.   Section 17 inserts a simplified outline. This outline is included to assist readers to understand the substantive provisions of the Part as they concern the office of the JSA Commissioner and JSA Deputy Commissioners. This outline is not intended to be comprehensive. It is intended that readers should rely on the substantive provisions.

 

80.   Subsection 18(1) provides that the JSA Commissioner is to be appointed by the Minister by written instrument, on a part-time or full-time basis. Subsection 18(2) provides that the JSA Commissioner is to be appointed for the period specified in the instrument of appointment, which must not exceed five years. This appointment timeframe reflects the intention that the Minister is able to appoint the JSA Commissioner, as distinct from the interim JSA Director, for an extended period of tenure (i.e. a maximum of five years). This gives effect to a more permanent model for Jobs and Skills Australia.

 

81.   A note under subsection 18(1) reminds the reader that the JSA Commissioner may be reappointed pursuant to section 33AA of the Acts Interpretation Act 1901 (Acts Interpretation Act). Section 33AA of that Act provides that if an Act confers a power to make an appointment, the power is taken to include a power of reappointment.

 

82.   Subsection 18(3) provides that a person may only be appointed as the JSA Commissioner if the Minister is satisfied that the person has appropriate qualifications, knowledge or experience. Examples of such qualifications, knowledge or experience may include:

 

·          relevant tertiary qualifications;

·          experience as a senior organisational leader and innovator across public or private sector(s);

·          knowledge and experience in the use of existing and emerging data sources;

·          knowledge and experience in research and analysis, and in the use of cutting-edge analytic techniques to underpin that research and analysis; or

·          strong representation, communication and stakeholder engagement skills.

 

83.   Subsection 18A(1) provides that a JSA Deputy Commissioner may be appointed by the Minister by written instrument, on a part-time or full-time basis. Subsection 18A(2) provides that a JSA Deputy Commissioner is to be appointed for the period specified in the instrument of appointment, which must not exceed five years. This appointment timeframe reflects the intention that the Minister is able to appoint a JSA Deputy Commissioner for an extended period of tenure (i.e. a maximum of five years). This gives effect to a more permanent model for Jobs and Skills Australia.

 

84.   A note under subsection 18A(1) reminds the reader that the JSA Commissioner may be reappointed pursuant to section 33AA of the Acts Interpretation Act. Section 33AA of that Act provides that if an Act confers a power to make an appointment, the power is taken to include a power of reappointment.

 

85.   Subsection 18A(3) provides that a person may only be appointed as the Deputy JSA Commissioner if the Minister is satisfied that the person has appropriate qualifications, knowledge or experience. Examples of such qualifications, knowledge or experience may include:

 

·          relevant tertiary qualifications;

·          experience as a senior organisational leader and innovator across public or private sector(s);

·          knowledge and experience in the use of existing and emerging data sources;

·          knowledge and experience in research and analysis, and in the use of cutting-edge analytic techniques to underpin that research and analysis; and

·          strong representation, communication and stakeholder engagement skills.

 

86.   Subsection 19(1) allows the Minister to appoint a person to act as a Commissioner during a vacancy in the office of a Commissioner (whether or not an appointment has previously been made to the office), or during any period when a Commissioner is absent from duty or from Australia or is otherwise unable to perform the duties of the office for any reason.

 

87.   A note under subsection 19(1) refers the reader to the rules that apply to acting appointments under sections 33AB and 33A of the Acts Interpretation Act. Another note informs the reader that a reference to a Commissioner will be a reference to the JSA Commissioner or a JSA Deputy Commissioner, as provided for by the definition of Commissioner inserted into section 4 of the Act. This is relevant in respect of instances where the Bill refers to a “Commissioner”.

 

88.   Subsection 19(2) provides that a person may be appointed to act as a Commissioner only if the Minister is satisfied that the person has appropriate qualifications, knowledge and experience.

 

89.   Section 20 sets out the remuneration arrangements for a Commissioner. Subsection 20(1) provides that a Commissioner is to be paid the remuneration that is determined by the Remuneration Tribunal, and that if no such determination is in operation, then the Commissioner is to be paid the remuneration as prescribed by the rules. Subsection 20(2) provides that a Commissioner is to be paid the allowances that are prescribed by the rules. Subsection 20(3) makes clear that section 20 has effect subject to the Remuneration Tribunal Act 1973 .

 

90.   Section 21 provides for the granting of leave of absence. Subsection 21(1) provides that if a Commissioner is appointed on a part-time basis, the Minister may grant leave of absence to the Commissioner on such terms and conditions as the Minister considers appropriate. If a Commissioner is appointed on a full-time basis, then subsection 21(2) provides that the Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal but that for any other leave of absence, the Minister may grant the Commissioner leave of absence on the terms and conditions that the Minister determines.

 

91.   Section 22 limits the circumstances in which a Commissioner can engage in paid work outside the duties of the Commissioner’s office. The Act contains a definition of paid work, which means work for financial gain or reward (whether as an employee, self-employed person or otherwise).

 

92.   Subsection 22(1) provides that if a Commissioner is appointed on a part-time basis, then the Commissioner must not engage in any paid work that, in the Minister’s opinion, conflicts or would conflict with the proper performance of the Commissioner’s functions. If a Commissioner is appointed on a full-time basis, then subsection 22(2) provides that the Commissioner must not engage in paid work outside the duties of the Commissioner’s office without the Minister’s approval.

 

93.   The purpose of this section is to ensure that a Commissioner can commit themselves to their role and avoid any potential, real or perceived conflicts of interest. In doing so, this section is intended to uphold principles of independence, transparency and accountability.

 

94.   Section 23 permits the Minister to determine terms and conditions of a Commissioner’s appointment in relation to any matters not covered by the Act.

 

95.   Section 24 allows a Commissioner to resign from their appointment as Commissioner by giving a written resignation to the Minister. The resignation takes effect on the day it is received, or on a later day if specified in the resignation.

 

96.   Section 25 prescribes the circumstances in which the Minister may terminate the appointment of a Commissioner. Specifically, the Minister may terminate the appointment of a Commissioner for misbehaviour, or if the Commissioner:

 

·          is unable to perform their duties because of physical or mental incapacity;

·          becomes bankrupt;

·          applies to take the benefit or any law for the relief of bankrupt or insolvent debtors;

·          compounds with their creditors;

·          assigns their remuneration for the benefit of their creditors;

·          is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months;

·          is engaged on a part-time basis - engages in paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of their duties;

·          is engaged on a full-time basis - engages, except with the Minister’s approval, in paid work outside the duties of their office; or

·          fails, without reasonable excuse to comply with section 29 of the PGPA Act, or rules made for the purposes of that section.

Item 33: Section 27

 

97.   Section 27 of the Act permits the Minister to give the JSA Director a notice about the way in which the JSA Director is to carry out their functions. This item omits a number of references to the “JSA Director” from this section and substitutes these with “JSA Commissioner”, reflecting the change in title of the JSA Director to the JSA Commissioner. The section otherwise remains unchanged.

 

Item 34: After section 27

 

98.   Item 34 reinserts subsection 9(2) to (4) that were repealed by item 14 (above). These subsections have been moved to Part 5 of the Act where they better fit with the structure of the Act. They now appear as subsections 27A(1) to (3).

 

99.   Subsection 27A(1) of the Act requires, before the end of each calendar year, Jobs and Skills Australia to prepare an annual report, on Australia’s current, emerging and future skills and training needs and priorities (including in relation to apprenticeships).  

100.       Under subsection 27A(2) this report is then to be tabled by the Minister in the Senate and the House of Representatives within 14 calendar days of the Minister’s receipt of the report, or in the event that no sitting day occurs for a particular House within 14 calendar days, on the next available sitting day for that relevant House.

 

101.       Subsection 27A(3) provides that Jobs and Skills Australia must publish the report on the Jobs and Skills Australia website, or in another manner as specified in the rules, within 14 calendar days of having provided the report to the Minister.

 

Item 35: Subsection 29(2)

 

102.       This item repeals subsection 29(2) and substitutes it with a new subsection which permits the JSA Commissioner to delegate all or any of the JSA Commissioner’s functions to a JSA Deputy Commissioner; or a SES employee in the Department, or an acting SES employee in the Department.

 

103.       This item expands the JSA Commissioner’s power to delegate, so that the JSA Commissioner may now also delegate their powers to a JSA Deputy Commissioner. This is appropriate because JSA Deputy Commissioners are appointed by the Minister and form part of Jobs and Skills Australia. Their statutory function also includes assisting the JSA Commissioner in the performance of the JSA Commissioner’s functions.

 

Item 36: Subsection 29(3)

 

104.       Subsection 29(3) relevantly requires a delegate to comply with any written directions of the “JSA Director”. This item omits “JSA Director” from subsection 29(3) of the Act, and substitutes it with the term with “JSA Commissioner”. This item reflects the change in title of the JSA Director to the JSA Commissioner.

 

Item 37: After section 29

 

105.       Item 37 inserts a new section 29A into the Act which requires the Minister to commence a review of the operation of the Act within two years after the commencement of section 29A.

 

106.       Subsection 29A(2) requires the Minister to subsequently cause to be prepared a report of the review and subsection 29A(3) requires the Minister to cause a copy of the report to be tabled in each House of Parliament within 15 sitting days after the report has been prepared.