The apprenticeship and traineeship system in South Australia is administered under the Training and Skills Development Act 2008 (SA). Working under delegation from the Training and Skills Commission, Traineeship and Apprenticeship Services (TAS) is a department within the State Government that is responsible for regulating the traineeship and apprenticeship system in South Australia.
A training contract that is approved by TAS specifies the vocation or trade that the trainee or apprentice will undertake structured training in, while being engaged by an employer in paid employment. All training contracts include a probationary period, usually three (3) months, and will also specify the period of the traineeship or apprenticeship. During the probationary period, either party (employer or apprentice/trainee) can withdraw from the training contract but must inform TAS of this decision. An apprentice or trainee cannot be dismissed once the probationary period has passed. However, a training contract can be transferred, suspended, terminated or varied following the probationary period with the agreement of all parties, including TAS.
The Workplace Relation Department of the MTA has regularly received calls from members seeking advice on terminating the engagement of an apprentice. While the employment of other employees may be legally terminated by an employer on various justifiable grounds, an employer cannot terminate the engagement of an apprentice once the probationary period has expired, as indicated above. Usually, if the employer decides to withdraw from the training contract, the matter is referred to TAS and subsequently to the South Australian Employment Tribunal who will determine the outcome of such an application.
It is quite possible that the apprentice is returned to the place of employment with a warning or with strict instructions to improve their performance or behaviour. Alternatively, an employer and apprentice may jointly decide that they wish to terminate the contract. After notifying TAS (Telephone contact: 1800 673 097) of the decision, a Training Contract Termination form can then be completed by the two parties and forwarded to TAS. In this case, it is important to ensure that there is no coercion brought on the apprentice to sign the document.
In dealing with problems with an apprentice, members are encouraged to follow the same counselling and warning processes as they normally would in the case of other employees. It is important to be able to demonstrate that all reasonable measures have been taken in attempting to rectify issues before any decision is made to seek a termination of the training contract. The WR Department should be contacted for advice and assistance where members are experiencing difficulties with a particular apprentice.
There is also the potential for an early sign off where the apprentice has completed their trade schooling and is nearing the completion of their apprenticeship. If approved by TAS and an apprentice is signed off early then the contract end point is brought forward and will now end at this new date, with no notice period being applicable. As such, where a member is experiencing issues with a later term apprentice, consideration should be given to the above approach.
It could prove to be an easier option as the time spent in attempting to have a contract terminated can be lengthy and may be difficult to achieve.
Members should also be aware that once an apprentice training contract ends there is no legal obligation to retain them beyond this point. However, members should attempt to make this clear to an apprentice whose completion date is approaching.
Another important option for members is to consider engaging a MTA GTO apprentice who can then be hosted to you. There is ongoing support and mentoring provided by the MTA in addressing any issues and in the event that there are ongoing issues with an apprentice, an employer can seek to return the apprentice to the MTA without further repercussions.Members who wish to discuss this further, should contact our Royal Park Training facility on 8241 0522.