Education (Vocational Education and Training Reform) Amendment Bill

  • enacted

Schedule 1 New Part 910 inserted into Schedule 1

s 66(2)

Part 9 10 Provisions relating to Education (Vocational Education and Training Reform) Amendment Act 2019

2628 Interpretation

In this Part, unless the context otherwise requires,—

amendment Act means the Education (Vocational Education and Training Reform) Amendment Act 2019

commencement date means the date on which the amendment Act comes into force

Commission means the Tertiary Education Commission established under section 159C

corresponding NZIST subsidiary, in relation to an existing polytechnic, means the Crown entity subsidiary specified in the second column of the table in clause 27(3)29(3) opposite the name of the existing polytechnic specified in the first column of the table

existing polytechnic or polytechnic means each polytechnic listed in the first column of the table in clause 27(3)29(3) that was established or deemed to have been established under section 162 before the commencement date and in existence immediately before that date

NZIST means the New Zealand Institute of Skills and Technology established by section 222A (as inserted by section 49 of the amendment Act)

Qualifications Authority means the New Zealand Qualifications Authority continued by section 256A.

Subpart 1—Transitional provisions relating to polytechnics

Conversion of polytechnics to corresponding NZIST subsidiaries

2729 Polytechnics converted to corresponding NZIST subsidiaries

(1)

On and after the commencement date, an existing polytechnic becomes a Crown entity subsidiary of NZIST and the following provisions apply for that purpose:

(a)

the polytechnic is to be treated as a company registered under the Companies Act 1993 with the name specified in the second column of the table in subclause (3) opposite the name of the polytechnic specified in the first column of that table; and

(b)

the Registrar of Companies must, on the commencement date, issue a certificate of incorporation for the company; and

(c)

100 shares must be treated as having been issued to NZIST.

(2)

The certificate of registration is conclusive evidence that the corresponding NZIST subsidiary was, on and after the commencement date, registered as a company under the Companies Act 1993.

(3)

For the purposes of subclause (1)(a), the name of the corresponding NZIST subsidiary is:

Name of existing polytechnicName of corresponding NZIST subsidiary
Ara Institute of Canterbury Ara Institute of Canterbury Limited
Eastern Institute of TechnologyEastern Institute of Technology Limited
Manukau Institute of Technology Manukau Institute of Technology Limited
Nelson Marlborough Institute of Technology Nelson Marlborough Institute of Technology Limited
Northland PolytechnicNorthland Polytechnic Limited
Otago Polytechnic Otago Polytechnic Limited
Southern Institute of TechnologySouthern Institute of Technology Limited
Tai Poutini Polytechnic Tai Poutini Polytechnic Limited
The Open Polytechnic of New Zealand The Open Polytechnic of New Zealand Limited
Toi Ohomai Institute of TechnologyToi Ohomai Institute of Technology Limited
Unitec New Zealand Unitec New Zealand Limited
Universal College of LearningUniversal College of Learning Limited
Waikato Institute of Technology Waikato Institute of Technology Limited
Wellington Institute of Technology Wellington Institute of Technology Limited
Western Institute of Technology at TaranakiWestern Institute of Technology at Taranaki Limited
Whitireia Community PolytechnicWhitireia Community Polytechnic Limited

Duration of corresponding NZIST subsidiaries

27A30 Duration of corresponding NZIST subsidiaries

(1)

Each corresponding NZIST subsidiary continues in existence until the close of 31 December 2022.

(2)

However, the Governor-General may, by Order in Council made on the recommendation of the Minister, extend the period that any particular corresponding NZIST subsidiary may continue to exist to a date specified in the order.

(3)

Before making a recommendation under subclause (2), the Minister must consult NZIST on the proposed extension and take into account NZIST’s views.

(4)

The Minister must not recommend an extension under subclause (2) unless the Minister is satisfied on reasonable grounds that the extension is—

(a)

consistent with the NZIST’s responsibilities under the charter set out in Schedule 22 (as inserted by section 69(2) of the amendment Act); and

(b)

in the interests of the tertiary education system and the nation as a whole.

27B31 NZIST’s council may dissolve corresponding NZIST subsidiary

NZIST’s council may, by resolution, at any time before the date specified in clause 27A(1)30(1) or by Order in Council under clause 27A(2)30(2), dissolve a corresponding NZIST subsidiary and transfer some or all of the rights, assets, or liabilities of that subsidiary to NZIST or another NZIST subsidiary (whether established under clause 27(1)29(1) or formed by NZIST under section 222Z).

Consequences of conversion of polytechnics to corresponding NZIST subsidiaries

2832 Directors of corresponding NZIST subsidiary

(1)

The directors of each corresponding NZIST subsidiary must comprise at least 4, but not more than 8, directors.

(2)

In appointing directors under subclause (1), NZIST must ensure that at least half of the initial directors reside in the region in which the corresponding NZIST subsidiary predominantly operates.

2933 Application of this Act to corresponding NZIST subsidiariesy

The provisions of this Act as far as they relate to an NZIST subsidiary that provides education or training (or both) apply, with any necessary modifications, to each corresponding NZIST subsidiary during the period that the corresponding NZIST subsidiary exists in accordance with clause 27A or 27B 30 or 31.

3034 Corresponding NZIST subsidiary is organisation, provider, and institution for purposes of this Act

(1)

Without limiting clause 2933, each corresponding NZIST subsidiary is to be treated, during the period that it exists in accordance with clause 27A or clause 27B 30 or 31, as—

(a)

an organisation within the meaning of section 159B(1), and the provisions of this Act relating to an organisation apply to it accordingly as if those provisions included a reference to the corresponding NZIST subsidiary:

(b)

a provider within the meaning of section 238D, and the provisions of this Act relating to providers apply to it accordingly as if those provisions included a reference to the corresponding NZIST subsidiary:

(c)

an institution within the meaning of section 159(1), and sections 31B, 31F, and 31G, and Parts 16, 16A, and 20 apply to it accordingly as if—

(i)

those provisions included a reference to the corresponding NZIST subsidiary; and

(ii)

any reference in those provisions to the council of an institution were a reference to the board of the corresponding NZIST subsidiary.

(2)

For the purposes of subclause (1)(a), the Commission may consider a proposed plan of an NZIST subsidiary and fund that subsidiary for an academic year beginning on or after 1 January 2021 but only if requested by NZIST.

3135 Members of existing polytechnic council cease to hold office

(1)

Every member of an existing polytechnic council holding office immediately before the commencement date ceases to hold office on the close of the day before that date.

(2)

Neither the Crown nor any existing polytechnic council is liable to make a payment to, or otherwise compensate, a person referred to in subclause (1) in respect of the loss of office.

3236 Rights, assets, and liabilities of existing polytechnics

(1)

This clause applies to all rights, assets, and liabilities that an existing polytechnic had immediately before the commencement date.

(2)

On and after the commencement date,—

(a)

the rights, assets, and liabilities of the existing polytechnic vest in the existing polytechnic’s corresponding NZIST subsidiary; and

(b)

unless the context otherwise requires, every reference to the existing polytechnic in any enactment (other than this Act), or instrument, agreement, deed, lease, application, notice, or other document before the commencement date must be read as a reference to the polytechnic’s corresponding NZIST subsidiary.

(3)

In this clause, assets, liabilities, and rights have the same meanings as in section 216(1).

32A37 Same person for purposes of Inland Revenue Acts

For the purposes of the Inland Revenue Acts (as defined in section 3(1) of the Tax Administration Act 1994), a corresponding NZIST subsidiary must be treated as the same person as the existing polytechnic.

3338 Employees of existing polytechnics

(1)

On and after the commencement date, every employee of an existing polytechnic becomes an employee of the polytechnic’s corresponding NZIST subsidiary on the same terms and conditions that applied to the person immediately before they became an employee of the corresponding NZIST subsidiary.

(2)

For the purposes of every enactment, law, determination, contract, and agreement relating to the employment of that employee,—

(a)

the employee’s employment agreement is to be treated as unbroken; and

(b)

the employee’s period of service with the existing polytechnic, and every other period of service of the employee that is recognised by the polytechnic as continuous service, is to be treated as a period of service with the polytechnic’s corresponding NZIST subsidiary.

(3)

To avoid doubt, the employment of an employee to whom this clause applies by a polytechnic’s corresponding NZIST subsidiary does not constitute new employment for the purposes of any service-related benefits, whether legislative or otherwise.

(4)

An employee to whom this clause applies is not entitled to receive any payment or benefit from an existing polytechnic or its corresponding NZIST subsidiary on the grounds that the person’s position in the polytechnic has ceased to exist or the person has ceased to be an employee of the polytechnic as a result of the transfer to its corresponding NZIST subsidiary.

(5)

This clause overrides—

(a)

Part 6A of the Employment Relations Act 2000; and

(b)

any employment protection provision in any relevant employment agreement.

3439 Government Superannuation Fund

(1)

This clause applies to a person who, immediately before becoming an employee of a corresponding NZIST subsidiary, was a contributor to the Government Superannuation Fund under Part 2 or 2A of the Government Superannuation Fund Act 1956.

(2)

For the purposes of the Government Superannuation Fund Act 1956, the person is treated as being employed in the Government service as long as the person continues to be an employee of the corresponding NZIST subsidiary.

(3)

The Government Superannuation Fund Act 1956 applies to the person in all respects as if the person’s service as an employee of the corresponding NZIST subsidiary were Government service.

(4)

Subclause (1) does not entitle a person to become a contributor to the Government Superannuation Fund if the person has ceased to be a contributor.

(5)

For the purpose of applying the Government Superannuation Fund Act 1956, the chief executive of the corresponding NZIST subsidiary is the controlling authority.

3540 Students of existing polytechnics

(1)

This clause applies to every student enrolled at an existing polytechnic immediately before the commencement date.

(2)

On and after the commencement date, the student must be treated as having been enrolled at the existing polytechnic’s corresponding NZIST subsidiary.

(3)

A student who would, but for the conversion of the existing polytechnic into its corresponding NZIST subsidiary, have been entitled to be granted an award of the existing polytechnic is entitled to be granted a like award of the corresponding NZIST subsidiary.

(4)

In subclause (3), award has the same meaning as in section 159(1).

35A 41 Visas granted under Immigration Act 2009

(1)

This clause applies to a visa granted under the Immigration Act 2009 in respect of—

(a)

a student, for the purposes of enrolment at an existing polytechnic; or

(b)

a staff member of an existing polytechnic.

(2)

On and after the commencement date, any reference to the existing polytechnic in a condition imposed on the visa must be read as a reference to the polytechnic’s corresponding NZIST subsidiary.

3642 Existing Qualifications Authority approvals, accreditations, and consents

(1)

This clause applies to the following matters granted to an existing polytechnic by the Qualifications Authority under Part 20 before the commencement date and in effect immediately before that date:

(a)

an approval of a programme under section 249:

(b)

an accreditation to provide all or part of a programme under section 250:

(c)

an approval to provide a training scheme under section 251:

(d)

a consent to assess against the standards listed on the Directory of Assessment Standards under section 252:

(e)

a consent to award a degree or a post-graduate qualification under section 253B.

(2)

On and after the commencement date,—

(a)

except as provided in subclause (3), the approval, accreditation, or consent (including any conditions imposed on an approval, an accreditation, or a consent) must be treated as if it were granted to the existing polytechnic’s corresponding NZIST subsidiary; and

(b)

unless the context otherwise requires, every reference to the existing polytechnic in the approval, accreditation, or consent must be read as a reference to the polytechnic’s corresponding NZIST subsidiary.

(3)

On and after 1 January 2023, the approval of a programme under section 249 and the consent to award a degree or a post-graduate qualification under section 253B must be treated as if they were granted to NZIST.

37 Existing funding approvals granted by Commission

(1)

This clause applies to an approval granted to an existing polytechnic by the Commission under section 159YA(2) or 159ZC before the commencement date and in effect immediately before that date.

(2)

On and after the commencement date,

(a)

the approval (including any conditions imposed on it) must be treated as if it were granted to the polytechnic’s corresponding NZIST subsidiary until the close of 31 December 2020 (unless the approval is earlier withdrawn or revoked or the subsidiary is earlier dissolved in accordance with clause 27B ); and

(b)

unless the context otherwise requires, every reference to the existing polytechnic in the approval must be read as a reference to the polytechnic’s corresponding NZIST subsidiary.

43 Existing funding paid by Commission under funding mechanism

(1)

This clause applies to funding (including any conditions imposed on the funding) payable by the Commission to an existing polytechnic

(a)

in accordance with an approval granted under section 159YA(2); or

(b)

other than via a plan under section 159ZC.

(2)

On and after the commencement date,

(a)

the Commission must treat the funding as if it were payable to the polytechnic’s corresponding NZIST subsidiary until the close of 31 December 2020, unless that funding is earlier suspended, revoked, or withdrawn under section 159YG or 159ZF or the subsidiary is earlier dissolved in accordance with clause 31; and

(b)

for the purposes of paragraph (a), every reference to the existing polytechnic in an approval granted under section 159YA(2) must, unless the context otherwise requires, be read as a reference to the polytechnic’s corresponding NZIST subsidiary.

37A44 Other references to existing polytechnics

On and after the commencement date, every reference to an existing polytechnic in any enactment (other than this Act) or document must, unless the context otherwise requires, be read as a reference to the polytechnic’s corresponding NZIST subsidiary.

3845 Existing proceedings and other matters

(1)

On and after the commencement date,—

(a)

the continuation or enforcement of any proceedings by or against an existing polytechnic may instead be continued or enforced by or against its corresponding NZIST subsidiary without amendment to the proceedings; and

(b)

the completion of a matter or thing that would, but for this clause, have been completed by the existing polytechnic may be completed by its corresponding NZIST subsidiary; and

(c)

anything done, or omitted to be done, or that is to be done, by or in relation to the existing polytechnic is to be treated as having been done, or having been omitted to be done, or to be done, by or in relation to its corresponding NZIST subsidiary.

(2)

In subclause (1)(a), proceedings

(a)

means civil and criminal proceedings; and

(b)

includes any enforcement or compliance action by the Commission or the Qualifications Authority.

3946 Final report of existing polytechnics

(1)

Each corresponding NZIST subsidiary must provide a final report to the Minister in relation to the polytechnic from which the corresponding NZIST subsidiary was formed in accordance with clause 27 29.

(1A)

For the purposes of section 45L of the Public Finance Act 1989, an existing polytechnic that is converted into a corresponding NZIST subsidiary must be treated as if it were disestablished and its operations were transferred to the corresponding subsidiary.

(2)

Despite subpart 1 of Part 5 of the Public Finance Act 1989, the Minister may specify the contents of the final report and the date or dates by which the contents of the report must be provided.

(3)

The Minister must present a copy of the final report to the House of Representatives as soon as is reasonably practicable after receiving it.

40 Validation of pre-commencement actions and processes regarding Ministerial appointments to NZIST’s council

(1)

This clause applies to any action or process undertaken by the Minister before the commencement date in appointing members to NZIST’s council.

(2)

An appointment is valid if the action or process substantially complies with the provisions of this Act (as amended by the amendment Act).

Subpart 1A2—Transitional provisions relating to NZIST

47 Validation of pre-commencement actions and processes regarding Ministerial appointments to NZIST’s council

(1)

This clause applies to any action or process undertaken by the Minister before the commencement date in appointing members to NZIST’s council.

(2)

An appointment is valid if the action or process substantially complies with the provisions of this Act (as amended by the amendment Act).

48 Interim chief executive of NZIST

Despite anything in Part 7B of the State Sector Act 1988, NZIST’s council may appoint a person, whether by way of an employment agreement or otherwise, as chief executive of NZIST during the period beginning on the commencement date and ending on the close of 6 July 2020 on terms and conditions agreed with the State Services Commissioner.

40A49 Membership of NZIST’s council reduced until all appointments made

(1)

The number of NZIST council members is proportionately reduced until the date on which each member referred to in section 222G(1)(a), (b), and (c) is appointed to the council.

(2)

No action of NZIST’s council is invalid merely because any member referred to in subclause (1) has not been appointed to NZIST’s council on the commencement date.

40B50 Restriction on NZIST forming new subsidiaries

The requirement for NZIST to obtain Ministerial approval before forming a subsidiary under section 222Z(1) (as inserted by section 49 of the amendment Act) ceases to apply on the close of 31 December 2024.

40C51 NZIST subsidiary is organisation, provider, and institution

(1)

This clause applies to an NZIST subsidiary formed by NZIST on or after the commencement date under section 222Z(1) that provides education or training, or both.

(2)

The NZIST subsidiary must be treated as—

(a)

an organisation within the meaning of section 159B(1), and the provisions of this Act relating to an organisation apply to it accordingly as if those provisions included a reference to the NZIST subsidiary:

(b)

a provider within the meaning of section 238D, and the provisions of this Act relating to providers apply to it accordingly as if those provisions included a reference to the NZIST subsidiary:

(c)

an institution within the meaning of section 159(1), and sections 31B, 31F, and 31G, and Parts 16, 16A, and 20 apply to it accordingly as if—

(i)

those provisions included a reference to the NZIST subsidiary; and

(ii)

any reference in those provisions to the council of an institution were a reference to the board of the NZIST subsidiary.

(3)

For the purposes of subclause (2)(a), the Commission may consider a proposed plan of the NZIST subsidiary and fund that subsidiary for an academic year beginning on or after 1 January 2021 but only if requested by NZIST.

Subpart 23—Transitional arrangements for work-based training

4152 Interpretation

(1)

In this subpart, unless the context otherwise requires,—

1992 Act means the Industry Training and Apprenticeships Act 1992

assets has the same meaning as in section 216(1)

former ITO means an industry training organisation listed in clause 43(a)54(a) that was recognised under Part 2 of the 1992 Act and whose recognition was in force immediately before that date

transition period means the period beginning on the commencement date and ending on the close of 31 December 2022

transitional ITO means—

(a)

a former ITO:

(b)

a body corporate that is recognised by the Minister under clause 43(b)54(b)

transition period means the period beginning on the commencement date and ending on the close of 31 December 2022

workforce development council means a workforce development council established under section 479 (as inserted by section 65 of the amendment Act).

(2)

In this subpart, unless the context otherwise requires, provider, specified industry, trainee, and work-based training have the same meanings as in section 477 (as inserted by section 65 of the amendment Act).

4253 Application of clauses 43 to 56 54 to 67

Clauses 43 to 5654 to 67 apply during the transition period.

4354 Recognition of transitional ITOs

The following are recognised as transitional ITOs for the purposes of this subpart:

(a)

each of the following former ITOs:

(i)

Boating Industries Association of New Zealand Incorporated:

(ii)

Building and Construction Industry Training Organisation Incorporated:

(iii)

Community Support Services ITO Limited:

(iv)

Competenz Trust:

(v)

Infrastructure Industry Training Organisation Incorporated:

(vi)

MITO New Zealand Incorporated:

(vii)

New Zealand Hair and Beauty Industry Training Organisation Incorporated:

(viii)

Primary Industry Training Organisation Incorporated:

(ix)

Service Skills Institute Incorporated:

(x)

Skills Active Aotearoa Limited:

(xi)

The Skills Organisation Incorporated:

(b)

any body corporate recognised by the Minister, by notice in the Gazette, as a transitional ITO for the purposes of this subpart.

4455 Effect of recognition

(1)

A transitional ITO recognised under clause 43(a)54(a)

(a)

is recognised for the 1 or more specified industries for which it was recognised under Part 2 of the 1992 Act immediately before the commencement date; and

(b)

must carry out the 1 or more activities described in subclause (3) in relation to the specified industries for which it was previously recognised under the 1992 Act.

(2)

A transitional ITO recognised under clause 43(b)54(b)

(a)

is recognised for the 1 or more specified industries specified in the notice given by the Minister recognising the transitional ITO; and

(b)

must carry out the 1 or more activities described in subclause (3) and specified in the notice.

(3)

For the purposes of this clause, the activities are—

(a)

developing, setting, and maintaining skill standards to be listed on the Directory of Assessment Standards; and

(b)

developing and maintaining arrangements for the delivery of work-based training that will enable trainees to achieve the relevant skill standards; and

(c)

the apprenticeship training activities described in section 490(2) (as inserted by section 65 of the amendment Act).

4556 Minister may impose conditions on recognition of transitional ITO

(1)

The Minister may, by written notice to a transitional ITO, impose conditions on that recognition that the Minister considers are reasonably necessary—

(a)

to maintain the quality and effectiveness of vocational education and training in the transitional ITO’s specified industries; and

(b)

to ensure the success of the transfer of responsibility for the activities of the transitional ITO.

(2)

The Minister may amend or revoke a condition imposed under subclause (1) by written notice to the transitional ITO.

(3)

However, no condition may be imposed under subclause (1) that requires the assets of a transitional ITO to be allocated to a workforce development council under clause 5567.

4657 Minister may change specified industries or activities of transitional ITO

The Minister may, by notice in the Gazette, change—

(a)

the specified industries covered by a transitional ITO; or

(b)

the activities that must be carried out by the transitional ITO in relation to those industries.

4758 Application of provisions of 1992 Act to transitional ITO

(1)

Despite the repeal of the 1992 Act, the provisions of the 1992 Act listed in subclause (2) continue in force, with any necessary modifications, and apply to a transitional ITO as if the amendment Act had not been passed and as if—

(a)

references in those provisions to an industry training organisation were references to the transitional ITO; and

(b)

references in those provisions to industry training were references to work-based training.

(2)

The provisions are—

(a)

section 10 (industry training organisation’s proposed plan must identify activities for which it seeks funding):

(b)

section 10A (power to fund if employer switches industry training organisation):

(c)

section 11 (matters to which Commission must have regard in determining whether to give funding approval to proposed plan):

(d)

section 11B (obligations of industry training organisations):

(e)

section 11C (Qualifications Authority may issue quality assurance improvement notice):

(f)

section 11D (Qualifications Authority may issue compliance notice):

(g)

section 11E (industry training organisation not to operate registered private training establishment):

(h)

section 11F (annual fee):

(i)

section 13A (additional functions of Qualifications Authority):

(j)

section 13B (Qualifications Authority may prescribe quality assurance requirements):

(k)

Part 2A (apprenticeship training):

(l)

Part 5 and Schedule 4 (training levies).

(3)

Despite subclause (1), section 11E of the 1992 Act (as applied by subclause (2)(g)) applies to a transitional ITO only while the transitional ITO continues to exercise any standard-setting powers for the specified industries covered by the transitional ITO.

4859 Existing approvals and consents granted to former ITO

(1)

This clause applies to the following matters granted to a former ITO by the Qualifications Authority under Part 20 before the commencement date and in effect immediately before that date:

(a)

an approval of a programme under section 249:

(b)

an approval to provide a training scheme under section 251:

(c)

a consent to assess against the standards listed on the Directory of Assessment Standards under section 252.

(2)

On and after the commencement date,—

(a)

an approval or a consent (including any conditions imposed on the approval or consent) must be treated as if it were granted to the former ITO’s corresponding transitional ITO; and

(b)

unless the context otherwise requires, every reference in the approval or consent must be read as a reference to the corresponding transitional ITO.

4960 Transitional ITO is organisation

A transitional ITO is to be treated as an organisation within the meaning of section 159B, and the provisions of this Act relating to an organisation apply to it accordingly.

5061 Transitional ITO is approved standard-setting body

A transitional ITO is to be treated as an approved standard-setting body for the purposes of section 248B in relation to the specified industries for which it is recognised under this subpart until—

(a)

a notice is given under clause 4657 that removes the activity described in clause 44(3)(a)55(3)(a) for a specified industry covered by the transitional ITO; or

(b)

the recognition of the transitional ITO is cancelled under clause 5365 or lapses under clause 5466.

5162 Transitional ITOs must develop transition plan

(1)

As soon as practicable after the commencement date, every transitional ITO must—

(a)

develop a transition plan for approval by the Commission that provides for the transfer of—

(i)

responsibility for the activity described in clause 44(3)(a)55(3)(a) (or any part of the activity) to any 1 or more workforce development councils:

(ii)

responsibility for the activities described in clause 44(3)(b)55(3)(b) and (c) (or any part of those activities) to any 1 or more providers specified by the Commission; and:

(iia)

responsibility for any of activities described in clause 55(3) (or any part of those activities) to another transitional ITO:

(iii)

the assets of the transitional ITO to any 1 or more providers specified by the Commission:providers, workforce development councils, or other transitional ITO; and

(b)

implement and maintain that plan; and

(c)

support providers specified by the Commission in transferring the responsibility for the activities described in clause 44(3)(b)55(3)(b) and (c).

(2)

The Commission may, when approving a transition plan under subclause (1), make any amendments to the plan that it considers necessary or desirable by giving written notice to the transitional ITO.

(2)

When approving a transition plan under subclause (1), the Commission

(a)

may make any amendments to the plan that it considers necessary or desirable by giving written notice to the transitional ITO; but

(b)

must not amend that part of the plan that relates to transfer of the assets to any 1 or more providers, workforce development councils, or other transitional ITO.

(3)

If a transitional ITO fails or refuses to comply with subclause (1), the Commission may develop the transition plan for the transitional ITO and the transitional ITO must implement and maintain that plan.

51A63 Commission must issue guidance on transition plans

(1)

The Commission must issue guidance to transitional ITOs on what must be contained in a transition plan required by clause 51(1).

(2)

The Commission must consult transitional ITOs when developing guidance under subclause (1).

5264 Minister may direct funding to provider for work-based training

Despite section 159M(1), the Minister may direct that funding be provided to a provider to support work-based training on behalf of employers if the Minister believes it is reasonably necessary for facilitating or ensuring the successful transfer of responsibility for the activities referred to in clause 44(3)(b)55(3)(b) and (c).

5365 Cancellation of recognition of transitional ITO

(1)

The Minister may, by notice in the Gazette, cancel the recognition of a transitional ITO—

(a)

if it asks the Minister to cancel its recognition; or

(b)

if the circumstances described in subclause (2) apply; or

(c)

if it has breached the requirement set out in section 11E of the 1992 Act (as applied by clause 47(2)(g)); or

(d)

if the Minister is satisfied that the transitional ITO

(i)

the transitional ITO is no longer responsible for carrying out any of the activities referred to in clause 44(3)55(3); or

(ii)

the body corporate recognised as the transitional ITO no longer exists.

(2)

For the purpose of subclause (1)(b), the circumstances are that—

(a)

the Minister has issued a notice to the transitional ITO stating that the Minister considers its performance is inadequate for any of the following reasons:

(i)

it is not carrying out at least 1 of the activities for the specified industries for which it is recognised:

(ii)

it is failing to comply with 1 or more conditions of its recognition:

(iii)

it is failing to comply with a compliance notice issued by the Qualifications Authority; and

(b)

the period of time specified in the notice within which the transitional ITO must improve its performance has elapsed; and

(c)

the Minister is satisfied that the transitional ITO’s performance continues to be inadequate for the reason specified in the notice.

(3)

For the purpose of subclause (2)(a), the notice must be in writing and state—

(a)

the areas in which the Minister considers the transitional ITO’s performance to be inadequate; and

(b)

what actions the transitional ITO should take to improve its performance; and

(c)

the period (which must be a reasonable period) within which the transitional ITO must improve its performance; and

(d)

the fact that the Minister may cancel the recognition of the transitional ITO under subclause (1) if it fails to improve its performance within that period.

(4)

If the recognition of a transitional ITO is cancelled under subclause (1), any approval or consent associated with that recognition is withdrawn on the date on which the recognition is cancelled.

(5)

No notice is required to be given to a transitional ITO for a withdrawal under subclause (4).

5466 Recognition lapses at end of transition period

(1)

This clause applies to any transitional ITO in existence at the close of the day immediately before the end of the transition period.

(2)

The recognition of the transitional ITO lapses at the end of the transition period.

(3)

If the recognition of a transitional ITO lapses under subclause (2), any approval or consent associated with that recognition is withdrawn on the date on which the recognition lapses.

(4)

No notice is required to be given to a transitional ITO for a withdrawal under subclause (3).

5567 Allocation of assets of transitional ITO

(1)

This clause applies to any assets of a transitional ITO during the transition period.

(2)

Despite any enactment to the contrary or anything in the transitional ITO’s founding document, those assets may be allocated to 1 or more providers, workforce development councils, or other transitional ITOs to which the activities of the transitional ITO have been transferred in accordance with the transition plan.

(3)

In this clause,

founding document means,

(a)

for a transitional ITO that is a company, the transitional ITO’s constitution (if any):

(b)

for a transitional ITO that is an incorporated society, the transitional ITO’s rules:

(c)

for a transitional ITO that is a charitable trust, the transitional ITO’s trust deed.

(3)

In this clause, founding document means,

(a)

for a transitional ITO that is a company, the transitional ITO’s constitution (if any):

(b)

for a transitional ITO that is an incorporated society, the transitional ITO’s rules:

(c)

for a transitional ITO that is a charitable trust, the transitional ITO’s trust deed.

56 No compensation for technical redundancy of employees of transitional ITO

(1)

An employee of a transitional ITO is not entitled to receive any payment or other benefit on the ground that the position held by the employee in the transitional ITO has ceased to exist if the position ceases to exist because the duties of the position are more closely connected with the functions of a workforce development council, a provider, or another transitional ITO and

(a)

the employee is offered employment in an equivalent position in that workforce development council, provider, or other transitional ITO (whether or not the employee accepts the offer); or

(b)

the employee is offered and accepts that employment.

(2)

In subclause (1)(a), employment in an equivalent position means employment that is

(a)

in substantially the same position; and

(b)

in the same general locality; and

(c)

on terms and conditions that are no less favourable than those applying to the employee immediately before the date the offer of employment is made to that employee; and

(d)

on terms that treat the period of service with the transitional ITO (and every other period of service recognised by the transitional ITO as continuous service) as if it were continuous service with the workforce development council, provider, or other transitional ITO (as the case may be).

Subpart 34—Other matters

56A68 Employment of transitional ITO employees by NZIST, NZIST subsidiary, wananga, or workforce development council, or other transitional ITO

(1)

This clause applies if the activities of a transitional ITO are transferred to NZIST, an NZIST subsidiary, a wananga, or a workforce development council, or another transitional ITO in accordance with a transition plan developed under clause 5162.

(2)

The chief executive of NZIST or the NZIST subsidiary, wananga, or workforce development council, or other transitional ITO (as the case may be) to which those activities are transferred must identify the employees of the transitional ITO—

(a)

whose duties overall are required by NZIST or the NZIST subsidiary, wananga, or workforce development council, or other transitional ITO (as the case may be) to carry out its functions; and

(b)

whose positions will cease to exist as a result of the transfer of responsibility of the transitional ITO’s activities to NZIST or the NZIST subsidiary, wananga, or workforce development council, or other transitional ITO.

(3)

An employee who is identified under subclause (2) may be offered equivalent employment by NZIST or the NZIST subsidiary, wananga, or workforce development council, or other transitional ITO (as the case may be), being employment that is—

(a)

in substantially the same position; and

(b)

in the same general locality; and

(c)

on terms and conditions (including any terms and conditions relating to redundancy and superannuation) that are no less favourable than those applying to the employee immediately before the date on which the offer of employment is made to the employee; and

(d)

on terms that treat the period of service with the transitional ITO (and every other period of service recognised by the transitional ITO as continuous service) as if it were continuous service with NZIST or the NZIST subsidiary, wananga, or workforce development council, or other transitional ITO.

(4)

If the employee accepts an offer of employment under subclause (3), the employee’s employment by NZIST, or the NZIST subsidiary, wananga, or workforce development council, or other transitional ITO (as the case may be) is to be treated as continuous employment, including for the purpose of service-related entitlements, whether legislative or otherwise.

(5)

An employee of a transitional ITO that who is offered employment under subclause (3) is not entitled to receive any payment or other benefit on the ground that the employee’s position in the transitional ITO has ceased to exist, whether or not the employee accepts the offer.

(6)

This clause overrides—

(a)

Part 6A of the Employment Relations Act 2000; and

(b)

any employee protection provision in any relevant employment agreement.

(7)

In this clause, transitional ITO has the same meaning as in clause 52.

56B69 Employment of Qualifications Authority employees by workforce development council

(1)

This clause applies if the functions of the Qualifications Authority in developing, setting, and maintaining skill standards in relation to 1 or more specified industries are to be transferred to a workforce development council that covers those industries in accordance with a transition plan developed by the Qualifications Authority for the purpose of this clause.

(2)

The chief executive of the workforce development council to which the functions of the Qualifications Authority are transferred must identify the employees of the Qualifications Authority—

(a)

whose duties overall are required by the workforce development council to carry out its functions; and

(b)

whose positions will cease to exist as a result of the transfer of responsibility of the Qualifications Authority’s functions to the workforce development council.

(3)

An employee who is identified under subclause (2) may be offered equivalent employment by the workforce development council, being employment that is—

(a)

in substantially the same position; and

(b)

in the same general locality; and

(c)

on terms and conditions (including any terms and conditions relating to redundancy and superannuation) that are no less favourable than those applying to the employee immediately before the date on which the offer of employment is made to the employee; and

(d)

on terms that treat the period of service with the Qualifications Authority (and every other period of service recognised by the Qualifications Authority as continuous service) as if it were continuous service with the workforce development council.

(4)

If the employee accepts an offer of employment under subclause (3), the employee’s employment by the workforce development council is to be treated as continuous employment, including for the purpose of service-related entitlements, whether legislative or otherwise.

(5)

An employee of the Qualifications Authority that who is offered employment under subclause (3) is not entitled to receive any payment or other benefit on the ground that the employee’s position in the Qualifications Authority has ceased to exist, whether or not the employee accepts the offer.

(6)

This clause overrides—

(a)

Part 6A of the Employment Relations Act 2000; and

(b)

any employee protection provision in any relevant employment agreement.

56C No compensation for technical redundancy

(1)

An employee of the Qualifications Authority is not entitled to receive any payment or other benefit on the ground that the position held by the employee has ceased to exist if the position ceases to exist because the duties of the position are more closely connected with the functions of a workforce development council and

(a)

the employee is offered employment in an equivalent position in that workforce development council (whether or not the employee accepts the offer); or

(b)

the employee is offered and accepts that employment.

(2)

In subclause (1)(a), employment in an equivalent position means employment that is

(a)

in substantially the same position; and

(b)

in the same general locality; and

(c)

on terms and conditions that are no less favourable than those applying to the employee immediately before the date the offer of employment is made to that employee; and

(d)

on terms that treat the period of service with the Qualifications Authority (and every other period of service recognised by the Qualifications Authority as continuous service) as if it were continuous service with the workforce development council.

70 Provider must not charge fee for compulsory student services during specified period

(1)

A provider must not charge a trainee a compulsory student services fee during the specified period.

(2)

The Minister may, by notice published on an Internet site maintained by or on behalf of the Ministry, specify any class of trainees to whom subclause (1) does not apply.

(3)

In subclause (1),

compulsory student services fee means a fee determined under section 227(1B) or as defined in section 235D(6)

provider has the same meaning as in section 477

specified period means the period beginning on the commencement date and ending on the close of 31 December 2021.

56D71 Existing training contracts

(1)

This clause applies to a training contract between an employer and employee that is in force immediately before the commencement date.

(2)

On and after the commencement date, the training contract must be treated as if it were a training agreement for the purposes of section 478.

56E72 References to industry training organisation to be treated as references to transitional ITO

Despite the amendments made by the amendment Act, a reference to an industry training organisation in any enactment or document, as it read immediately before the commencement date, must, on and after that date, be read as a reference to a transitional ITO for the period that transitional ITOs remain in existence under the amendment Act.

5773 Transitional regulations

(1)

The Governor-General may, by Order in Council made on recommendation of the Minister, make regulations prescribing transitional provisions, savings provisions, or both, for either or both of the following purposes:

(a)

facilitating or ensuring the orderliness of the transition of the amendments made to this Act by the amendment Act:

(b)

ensuring that existing rights or obligations continue as part of, or despite, that transition.

(2)

The Minister must not recommend the making of regulations under subclause (1) unless satisfied that those regulations—

(a)

are reasonably necessary for either or both of the purposes in subclause (1)(a) and (b); and

(b)

are consistent with the purposes of those amendments.

(3)

The transitional provisions or savings provisions prescribed by regulations under subclause (1) may be provisions in addition to or instead of those set out in this Part, and may—

(a)

provide that, for a transitional period, in any circumstances, or subject to any conditions, specified in the regulations, 1 or more provisions (including definitions) of those amendments to this Act do not apply, or apply with modifications or additions:

(b)

provide that, for a transitional period, in any circumstances, or subject to any conditions, specified in the regulations, 1 or more provisions repealed, amended, or revoked by those amendments to this Act continue to apply, or apply with modifications or additions, as if they had not been repealed, amended, or revoked:

(c)

provide for any other matter necessary for either or both of the purposes in subclause (1)(a) and (b).

(4)

No regulations made under this clause may be made, or continue in force, after the close of 31 December 2022.