Frequently Asked Questions

Legal/Legislative Issues >> Questions

Q1 ) Are there new provisions to "deem" a traineeship is in effect if no application has been lodged - as there was under the old Act?

Q2 ) In the Apprenticeship and Traineeship Act, 2001 there is reference to "junior". What is a junior?

Q3 ) When does a corporate body (eg XYZ Pty Ltd) become a different entity and when is a change of name just a change of name eg when is a transfer of a contract of training required rather than just an entity name update or a correction to the employer's name?

Q4 ) When is a company name NOT a business name? This is a little confusing.

Q5 ) Can I declare a "trust" as the employer?

Q1 ) Are there new provisions to "deem" a traineeship is in effect if no application has been lodged - as there was under the old Act?

A1 ) In the old Act there was provision to deem that an apprenticeship was in effect between an employer and an apprentice. There was no similar deeming provision for traineeships. The new Act continues this same situation. There are no provisions to "deem" traineeships in the new Apprenticeship and Traineeship Act 2001. The reason for this is that it is not compulsory to establish a Training Contract with a person employed in a recognised traineeship vocation. If an application is not lodged and approved then a traineeship does not exist within the meaning of the Apprenticeship & Traineeship Act 2001. The onus is on the parties to ensure an application has been lodged within the 28-day period allowed from the commencement of employment.

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Q2 ) In the Apprenticeship and Traineeship Act 2001 there is reference to "junior". What is a junior?

A2 ) A junior is defined under the Apprenticeship & Traineeship Act 2001 as a person under the age of 21 years. A junior working in a recognised trade vocation must be either qualified or apprenticed in that trade vocation. There are some exemptions please note section 25 of the Apprenticeship & Traineeship Act

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Q3 ) When does a corporate body (eg XYZ Pty Ltd) become a different entity and when is a change of name just a change of name eg when is a transfer of a contract of training required rather than just an entity name update or a correction to the employer's name?

A3 ) It is very difficult to give a simple answer to this question. In many respects a company is like a living, breathing person. The company/person can change its name but it is still the same company/person. Like a person, a company can die (be wound up/dissolved). Companies can also be taken over (same company, different ownership), their assets or "business" can be sold or transferred (different person/company). They can merge (probably a different company), enter into joint ventures (same company).

The simplest way to deal with this issue is to ask the employer whether a new company has been formed which requires that assets be formally transferred. If so, then a transfer of the Training Contract should be sought. If not treat it as an entity name update or correction as the case may require. You can only assess this question on a case by case basis.

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Q4 ) When is a company name NOT a business name? This is a little confusing.

A4 ) Corporate bodies (often referred to as companies) and business names are established under national and state legislation. The Key difference is that a corporate body establishes a separate legal entity whereas registration of a business name does not. In NSW the Training Contract requires that the legal entity which fulfils the role of the employer or host employer be identified.

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Q5 ) Can I declare a "trust" as the employer?

A5 ) No. Where a trust has been established, the trustee(s) is the legal entity with the capacity to sign a Training Contract. A trust is not a legal entity and does not have the legal capacity to enter into a contract of employment and training. See Advice & Instruction.

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