‘Questions and Answers’ for TasTAFE staff on the TasTAFE (Skills and Training Business) Bill 2021
28 October 2021
Rationale and Government’s commitments
- Why are the changes being proposed?
The proposed changes to the employment framework are designed to provide TasTAFE with a less rigid framework and to have more autonomy over its workforce.
This will enable TasTAFE to more easily attract highly skilled staff on more flexible work arrangements in all areas of its operations including teaching and non-teaching areas and will enable TasTAFE to be responsive to the needs of Tasmanian learners, employers and industries.
- What are the Tasmanian Government’s commitments to TasTAFE employees through the TasTAFE transition?
The Tasmanian Government has committed that in its proposal to transition TasTAFE to a not-for-profit government business model that no existing TasTAFE employee will be worse off and that there will be no forced redundancies.
The Tasmanian Government also committed that TasTAFE will remain publicly owned, not-for-profit and will not be privatised.
- When will the changes take effect?
It is proposed that TasTAFE will transition to a not-for-profit government business model on 1 July 2022.
Legislation was introduced into Parliament on Thursday 28th October 2021.
- Why can’t this be achieved under the State Service Framework?
The Government has fully explored what could be achieved in the State Service context.
The State Service framework is designed to support the bureaucracy to manage a large workforce and, in many areas, employees skills are transferrable so can be readily deployed to manage shifting priorities.
TasTAFE’s operating environment is different.
TasTAFE operates in a competitive market for both its services and its workforce. Its workforce has its own constraints due to the national regulatory framework for VET and the national shortage of VET trainers. The rigidities in the State Service framework further constrain TasTAFE.
The draft legislation provides the best model to deliver the operational flexibility that TasTAFE needs.
- How does the proposed new TasTAFE entity differ from a Government Business Enterprise?
The Government is not proposing a Government Business Enterprise model for TasTAFE. Entities established under the Government Business Enterprises Act 1995 (the GBE Act) have a primary commercial focus, including achieving a sustainable rate of return, and are generally subject to an expectation of payment of dividends.
These entities are also subject to a range of costs that are not incurred by General Government entities, such as requiring the payment of income tax equivalents and state taxes.
There are similarities in the governance model set out in the legislation and the GBE Act including the requirement for TasTAFE to prepare an annual Corporate Plan and the preparation and tabling in Parliament of its Annual Report.
The new TasTAFE entity will be able to be scrutinised by both Houses of Parliament each year, whereas Parliamentary scrutiny of GBEs alternates between the Upper and Lower House, meaning each House can only scrutinise a GBE every second year.
- Why is all this necessary if TasTAFE already has the nation’s highest student satisfaction rate?
The Government knows that there is a lot to celebrate about TasTAFE and it wants that to continue.
TasTAFE currently attracts a significant amount of government investment on an annual basis and the Government wants to ensure that TasTAFE is able to operate flexibly and efficiently and support Tasmanians to gain skills that will lead to jobs and support the Tasmanian economy.
The Government wants the vocational education and training delivered by TasTAFE to be accessible to more Tasmanians, to ensure that the skills students gain match contemporary job requirements and lead to career pathways, to improve engagement with industry, and for TasTAFE to employ more trainers and teachers with additional skills in emerging industry areas.
A strong TasTAFE will benefit learners in all Tasmanian communities.
Employment arrangements including transition to the federal system
- What are the employment arrangements in the proposed model?
Under the proposed model TasTAFE would no longer be an ‘Agency’ under the State Service Act 2000 and TasTAFE would become an employer under the federal Fair Work Act 2009.
On 1 July 2022, all TasTAFE employees would become employees of TasTAFE under the federal system.
Existing terms and conditions that are in Awards would be preserved under a ‘copied state instrument’ for a period of up to five years for preserved awards and for preserved agreements until terminated or until a new agreement is negotiated and registered for all employees.
- Will current Employment Directions under the State Service Act continue to apply?
No. The federal system will apply and the new TasTAFE entity will prepare its own contemporary employment policies consistent with that framework. The Fair Work Act 2009 includes National Employment Standards (NES) which are legislated minimum standards of employment.
Follow this link to more information on the National Employment Standards.
- Which other entities have the same employment arrangements as those proposed?
The Fair Work Act 2009 applies to most employers and employees in Tasmania, including most of the private sector (excluding sole traders and partnerships), community sector, local government, and most state-owned business entities (including State-owned Companies and Government Business Enterprises).
Nationally, the Fair Work Act 2009 applies to all TAFEs in New South Wales, Victoria, the ACT and Northern Territory.
- How will TasTAFE employees’ wages and conditions be translated to the federal jurisdiction?
TasTAFE employees existing terms and conditions will be preserved under the transition arrangements to the federal system.
The Fair Work Act 2009 sets out how terms and conditions agreed through existing awards and agreements continue.
Existing terms and conditions that are in TasTAFE employee awards and agreements would be preserved as ‘copied state instruments’. Under the Fair Work framework:
- Awards are preserved for a default period of five years or until a new enterprise agreement is negotiated and registered.
- Agreements are preserved unless and until terminated or until a new enterprise agreement is negotiated and registered.
The Fair Work Act 2009 provides for continuity of service of a transferring employee.
There will be no changes to TasTAFE employee superannuation arrangements and entitlements under either the defined benefits scheme or the accumulation scheme.
TasTAFE employees continue to be employees for the purposes of the Public Sector Superannuation Reform Act 2016.
There will be no changes to long service leave arrangements and entitlements.
The legislation also includes an avoidance of doubt provisions at s12(4) and (5).
- Why doesn’t the draft legislation state that TasTAFE employees are employed under the Fair Work Act 2009?
The legislation does not explicitly include a reference to the Fair Work Act 2009. All employers in Tasmania who are not subject to specific legislative provisions in the Industrial Relations (Commonwealth Powers) Act 2009, such as the Tasmanian State Service, are subject to the Fair Work Act 2009.
- What aspects of industrial relations are referred to the Fair Work framework?
The Industrial Relations (Commonwealth Powers) Act 2009 identifies industrial relations matters that are referred to the federal system and those that remain within the Tasmanian industrial relations framework.
Industrial relations matters that are referred to the federal system include terms and conditions of employment, rights and responsibilities, discrimination relating to employment (although the Anti-Discrimination Act (Tas) 1998 applies), termination of employment, industrial action, enterprise agreement making and modern awards and standing down of employees without pay.
View the Tasmanian legislation at this link: Tasmanian legislation.
- Where can I find more information on the federal system?
- What will happen to permanent employment status of transferring employees?
It will continue unchanged under the federal system.
- How many copied state instruments will there be? What will they be?
- Tasmanian State Service Award
- Public Sector Union Wage Agreement 2019
- TasTAFE Teaching Staff Award 2021
- TasTAFE Teaching Staff Industrial Agreement 2019
- Education Facility Attendants Salaries and Conditions Employment Agreement 2019 (No 2)
- Education Facilities Attendants Job Security Industrial Agreement 2019
- Facilities Attendants (Tasmanian State Service) Award 2021
What happens if an industrial instrument has expired on 1 July 2022? Will it still be ‘copied’?
Yes. Awards and Agreements will ‘copy’ across under the transfer of business provisions of the Fair Work Act 2009 even if the nominal expiry date of the agreements has been reached.
The copied terms and conditions in Awards are preserved for a default period of five years and the copied terms and conditions in Agreements are preserved until a new agreement is negotiated and registered for all employees.
- What happens if negotiations on industrial instruments are part way through on 1 July 2022?
The instrument that is in place as at 1 July 2022 will be copied across once initiated under the Fair Work Act 2009 with TasTAFE as the employer and the relevant provisions regarding agreement making would need to be followed.
- When will a new enterprise agreement process commence? What confidence can we have in that timeframe?
That will be determined by TasTAFE and employees and unions. The Fair Work Commission deals with disputes related to enterprise bargaining.
- Does the commitment to maintain current terms and conditions of employment apply only to current employees or to future employees of TasTAFE also?
TasTAFE is proposed to be the employer under the federal system from 1 July 2022.
After 1 July 2022 any new TasTAFE employees would be employed either under a new enterprise agreement or through a contract of employment underpinned by the equivalent modern award and having regard to market pay rates.
- How will the current award registered in the Tasmanian jurisdiction be registered and applied in the federal jurisdiction as a copied state instrument?
This will automatically occur on the transfer date of 1 July 2022.
- Who will keep me updated on this process?
The TasTAFE CEO will provide regular updates as new information becomes available. The TasTAFE INFOcus Transition Page will be kept current with all updates.
- Will TasTAFE staff still observe the same public holidays as the State Service?
TasTAFE will observe the Statutory Holidays Act (TAS) 2000 and Easter Tuesday will be observed in accordance with copied Awards and Agreements.
- Who negotiates / votes on new agreements, how is this different to the current process?
Enterprise agreements are negotiated between an employer, their employees, and any employee representatives (e.g. a union). This process is called ‘bargaining’ and has to follow the requirements of the Fair Work Act 2009. The Fair Work Commission checks and approves agreements.
- What arrangements apply to a transferring employee if they get a promotion?
If the new role is covered by any of the existing industrial instruments they will continue to apply. If not, then a contract of employment underpinned by any applicable modern award will apply.
- How is performance management dealt with under the federal system?
TasTAFE will develop clear performance management guidelines and rules. Disputes and dismissals will be governed by the Fair Work Commission.
- Does a new Enterprise Agreement pick up an existing Award? What happens in the event of any inconsistency?
A new Enterprise Agreement will be based on the particular needs of the enterprise having regard to the labour market and market rates of pay. For approval purposes, the Fair Work Commission will assess any proposed new Enterprise Agreement against the appliable modern awards.
- Will TasTAFE staff be state government employees, federal government employees, private sector employees or something else?
From 1 July 2022 TasTAFE employees will be employees of TasTAFE.
- Will there still be workplace flexibility around working hours??
Yes. As a contemporary employer, TasTAFE will offer flexible working arrangements where it suits business needs.
- Will there be an option for some existing employees to remain in the State Service?
No. All TasTAFE employees will transfer to the new entity on 1 July 2022.
- Will secondments to the State Service be possible?
Yes. The potential for TasTAFE employees to be seconded to roles within the Tasmanian State Service will continue. Arrangements for leave and other entitlements in the event of a secondment would be the subject of the agreed terms of the secondment.
- How long will my entitlements be preserved for?
Existing terms and conditions that are in TasTAFE employee awards and agreements are preserved under a ‘copied state instruments’.
- Awards are preserved for a default period of five years or until a new enterprise agreement is negotiated and registered.
- Agreements are preserved until terminated or until a new enterprise agreement is negotiated and registered.
Existing long service leave and superannuation arrangements will continue (there is no time limit on this) and the legislation has avoidance of doubt provisions.
- How will Employment/Ministerial Directions be addressed in the legislation?
Employment directions are made under the State Service Act 2000 and do not transfer under a copied state instrument within the transfer of business provisions in the Fair Work Act 2009.
Policies and Procedures and the like will be best determined by the new entity and where relevant following consultation with employees and unions.
- What will happen to leave entitlements for TasTAFE employees?
Leave balances (Sick Leave, Annual Leave and Long Service Leave), will not be affected.
- What will happen to superannuation arrangements for TasTAFE employees?
There are no changes to TasTAFE employee superannuation arrangements and entitlements under either the defined benefits scheme or the accumulation scheme.
Superannuation arrangements are not referred to the Fair Work framework and TasTAFE employees continue to be employees for the purposes of the Public Sector Superannuation Reform Act 2016.
- What will happen to long service leave arrangements for TasTAFE employees?
There are no changes to TasTAFE employee long service leave arrangements and entitlements.
- Why does the legislation refer to ‘termination’ of TasTAFE employees (schedule 3 clause 7)?
The Government wants all current TasTAFE employees to continue with their existing terms and conditions.
The Government’s intention is therefore that TasTAFE will transition to the national Fair Work system under the transfer of business provisions in the Fair Work Act 2009.
Transferring under the transfer of business provisions will ensure that current TasTAFE employees continue with their existing terms and conditions as ‘copied state instruments’.
The transfer of business provisions in the Fair Work Act 2009 require that a person’s employment in the public sector is ‘terminated’ and the person immediately then becomes employed by TasTAFE as the new employer.
To ensure that the copied state instruments protections are triggered, Clause 7 ‘terminates’ the employment of the TasTAFE employees from the State Service and importantly clause 6 provides that immediately on termination, a former employee is appointed as a TasTAFE employee. This is a seamless transition and is automatic in that the Fair Work Commission does not need to do anything.
- Will staff be offered redundancies or redeployment?
Redundancy and redeployment programs for government agencies and businesses are policy matters and are not written into legislation. The Government has committed to no forced redundancies.
- Will the proposed changes affect ASQA registration?
No. The model has been designed to continue TasTAFE’s ASQA registration as well as Australian Nursing and Midwifery Accreditation Council accreditation.
- Will teachers still be registered with the Teachers Registration Board?
The requirement for TasTAFE teachers to be registered with the Teachers Registration Board is removed to reduce overlapping regulation.
Teachers can remain registered with the Teacher Registration Board if they choose to. Teachers that also teach at schools will be required to be registered.
- How will quality teachers be attracted in the future?
Quality teachers are likely to be attracted to TasTAFE through the opportunity to provide high quality training for Tasmanians looking for pathways for jobs. It is also anticipated that trainers from industry would be attracted to more flexible employment arrangements including the potential for employment through fixed term contracts which will help TasTAFE manage surges in demand for training.
- Is this about prioritising industry over other interests?
The changes are about enabling TasTAFE to provide more young Tasmanians with the skills they need to get jobs in Tasmania, now and into the future.
Industry and employers have an important role to play in identifying the future skills needs of the Tasmanian economy and working with TasTAFE to improve outcomes. This needs to be a partnership.
PESRAC recommended that Industry bodies should enter into industry compacts with the State Government that include step-up commitments to provide clear and specific advice on current and future training requirements, to implement a range of training and education pathways and promote jobs in their industries, to collaborate to support people from industry working as trainers and to share infrastructure to allow students to train on modern technology.
- Who has been consulted on the Bill and what was the feedback?
During the public consultation period, 44 submissions were received with one requested to be withdrawn.
Written submissions were received from peak bodies and employers, TasTAFE employee representatives (unions) and individuals. The submissions received focussed on the following themes:
- The need for TasTAFE to change and improve
- Support for the proposed model, noting that:
- it will enable current barriers and issues experienced by employers and industry to be addressed
- it will facilitate more collaboration between TasTAFE and industry, enable TasTAFE to be more responsive to fluctuations in the economy, align TasTAFE’s training more readily to business timeframes and enable more flexible options for training to be delivered
- it will provide TasTAFE with more flexible employment options including the ability to attract trainers from industry
- Concerns about the proposed model and in particular the proposal to move TasTAFE staff to the Fair Work employment model.
What changes have been made to the draft bill following consultation?
In response to the public consultation submissions, the following amendments have been made to the legislation:
- TasTAFEs functions have been expanded to explicitly provide for the provision of foundations skills training; and to provide vocational education and training to ‘a high standard’.
- Removing the clause that deems applicants for a position at TasTAFE to have given their authorisation for police reports to be sought.
- In relation to breaches to the Child Safe Code of Conduct and the complaints and inquiries processes, inclusion of a requirement that these must be conducted in a manner that ensures procedural fairness.
The Government has also provided an additional assurance for existing TasTAFE employees that, where they are recruited to a role in the State Service within a period of five years after the new Act commences, there will be deemed to be no break in their State Service employment.
- Have students been consulted?
Yes. Students have been informed that consultation was open on the draft legislation for TasTAFE and were encouraged to make a submission.
- How will the legislation protect children who are training at TasTAFE?
The Tasmanian Government has committed to implementing the legislative framework for Child Safe Organisations. This legislation requires TasTAFE to develop and implement a policy and relevant documents that are consistent with the Australian Human Rights Commission’s Principles for Child Safe Organisations and the Royal Commission’s Child Safe Standards.
- Will TasTAFE be separated from the Department of Education?
TasTAFE is not currently part of the Department of Education.
The Training and Workforce Development Act 2013 which establishes TasTAFE is administered by the Department of State Growth.
The only connection between TasTAFE and the Department of Education is for the services that the Department deliver through a business services agreement.
The legislation does not impact on the current business services agreement arrangements.
The information contained on this webpage is general in nature. If you are unsure about how it applies to your situation you are encouraged to speak with your TasTAFE manager, a union or a workplace relations professional.