This Bills Digest replaces a preliminary Bills Digest which was published on 28 March 2023.

Key points

• The Jobs and Skills Australia Amendment Bill 2023 (the Bill) amends the Jobs and Skills Australia Act 2022 (the JSA Act) to provide for governance arrangements and functions of Jobs and Skills Australia (JSA).
• The JSA Act established JSA as a statutory body within the Department of Employment and Workplace Relations (DEWR) and set out its interim functions and staffing arrangements, including establishing a JSA Director to commence JSA’s work.
• This Bill establishes the permanent arrangements for JSA, following consultation.
• The Bill amends the JSA Act to establish the role of the JSA Commissioner and JSA Deputy Commissioners, establish a Ministerial Advisory Board, and expand the functions of JSA. It also sets out transparency measures in relation to JSA’s work plan and reporting and provides for a review of the operation of the JSA Act in 2 years.

Introductory Info

Date introduced: 22 March 2023
House: House of Representatives
Portfolio: Employment and Workplace Relations
Commencement: The day after Royal Assent.

Purpose and structure of the Bill

The purpose of the Jobs and Skills Australia Amendment Bill 2023 (the Bill) is to amend the Jobs and Skills Australia Act 2022 (the JSA Act) to provide for governance arrangements and functions of Jobs and Skills Australia (JSA) and related amendments.

The JSA Act established interim arrangements for JSA. This Bill establishes the permanent arrangements for JSA, including:

• establishing the role of the JSA Commissioner (which replaces the JSA Director)
• establishing up to 2 JSA Deputy Commissioners
• establishing a Ministerial Advisory Board
• expanding the functions of JSA
• providing for new administrative arrangements relating to the office of the JSA Commissioner and Deputy JSA Commissioners
• setting out JSA’s requirements in relation to preparing an annual workplan and an annual jobs and skills report
• providing for a review of the operation of the JSA Act within 2 years.

Background

In July 2022, the Australian Government introduced Bills to Parliament to establish Jobs and Skills Australia (JSA) as a statutory body within the Department of Employment and Workplace Relations (DEWR) and to abolish the role of the National Skills Commissioner. The enactment of the JSA Act and the Jobs and Skills Australia (National Skills Commissioner Repeal) Act 2022 (NSC Repeal Act), replaced the National Skills Commission (NSC; website soon to be archived) with JSA with effect from 16 November 2022. Minister O’Connor announced Professor Peter Dawkins as the interim Director of JSA on 5 December 2022.

As noted in the Bills Digest for the originating Bills, the establishment of JSA was a 2022 election commitment by the Australian Labor Party (Labor), that was first announced in 2019.

The JSA Act (as made) set out the initial functions and staffing arrangements for JSA, including establishing an interim JSA Director to commence JSA’s work. In his second reading speech for the JSA Bill, Minister for Skills and Training Brendan O’Connor flagged that further legislation would be introduced, following consultation and to be informed by the Jobs and Skills Summit, ‘that sets out the full range of functions, structure and governance arrangements to establish the permanent model’.

Consultation

There has subsequently been substantial consultation with stakeholders in relation to the establishment of JSA, its governance, and functions. This includes consultation:

• in relation to the originating Bills for the JSA Act and the NSC Repeal Act (the originating Bills), including an inquiry and report by the Education and Employment Legislation Committee
• through the Jobs and Skills Summit and
• following the release of a JSA discussion paper by DEWR in January 2023.

Education and Employment Legislation Committee

The Senate referred the originating Bills to the Education and Employment Legislation Committee (the Committee) for inquiry and report by 23 September 2022. The Committee received 55 submissions and held a public hearing in Canberra on 23 August 2022.

The inquiry report included a section summarising key feedback on the permanent model for JSA. In relation to governance arrangements, the report stated that there was agreement about the importance of JSA’s independence, and a tripartite approach—comprising representation from governments, unions and employers—to its governance and operations. However, there were a range of views on how to operationalise this (p. 17).

In terms of JSA’s role and functions, there was support for JSA to play a strong role in workforce planning, with some stakeholders arguing for the potential for JSA to develop and maintain national skills plans and workforce development strategies (p. 19). A range of stakeholders also saw a role for JSA to promote access, equity and diversity in the training system and broader workforce (p. 19). Other aspects of the JSA’s role discussed by the Committee included:

• calls for JSA to contribute to improving the quality of the training system, including through better data (p. 20)
• arguments for the explicit inclusion of higher education in JSA’s remit (p. 21) and
• calls for JSA to play a role in determining the role of migration in meeting Australia’s workforce needs (p. 21).

The Committee stated that there was overwhelming stakeholder support for the Bills, which was underpinned by ‘a clear need for change’ (p. 22). In terms of distinctions between JSA and the NSC, the Committee noted stakeholders’ praise for the work of the NSC. However, the Committee also expressed its understanding that NSC’s:

…  effectiveness in the current environment is constrained by a limited workforce planning function and the absence of a tripartite approach to its work—both of which will be key features of the new JSA agency (pp. 22-23).

The Committee acknowledged that expectations for JSA were high and argued that the operationalisation of the tripartite arrangement would be critical to JSA’s success. The Committee concluded:

Overall, by establishing the interim JSA agency (and abolishing the NSC), the committee believes the bills represent an important first step in re-building a strategic, agile and cohesive national training system—one that can respond quickly to changing workforce needs and position Australia to make the most of its economic opportunities. Accordingly, the committee recommends that the bills be passed (p. 23).

Coalition Senators provided additional comments—see under ‘Policy position of non-government parties’ below.

Jobs and Skills Summit

As part of its 2022 election commitments on employment, Labor committed to develop a White Paper on Full Employment to guide the labour market in the recovery from the COVID-19 pandemic. To inform the White Paper, Labor pledged to convene an Australian Jobs Summit as one of its first actions in Government. In July 2022, Prime Minister Anthony Albanese and Treasurer Jim Chalmers announced that the Jobs and Skills Summit would be held at Parliament House on 1–2 September 2022.

An issues paper released ahead of the Summit outlined 5 broad themes to be covered:

• Maintaining full employment and growing productivity.
• Boosting job security and wages.
• Lifting participation and reducing barriers to employment.
• Delivering a high-quality labour force through skills, training and migration.
• Maximising opportunities in the industries of the future (p. 1).

The Summit brought together a range of participants by invitation, including unions, employers, civil society and governments.

A paper outlining outcomes of the Summit identified immediate actions, areas for further work and complementary existing commitments across a number of areas. Immediate actions outlined in relation to JSA under ‘A better skilled, better trained workforce’ (pp. 2–3) were:

The Government will:

• Legislate Jobs and Skills Australia as a priority based on tripartite governance
• Establish the Jobs and Skills Australia work plan in consultation with all jurisdictions and stakeholders, to address workforce shortages and build long term capacity in priority sectors
• Task Jobs and Skills Australia, once established, to commission a workforce capacity study on the clean energy workforce.

The role of JSA in ‘Addressing skills shortages and strengthening the migration system’ (pp. 4–5) was identified as an area for further work, that is, to:

• Embed a role for Jobs and Skills Australia’s analysis of skill shortages in setting priorities of the skilled migration program.

Jobs and Skills Australia—Discussion paper

In January 2023, DEWR released the Jobs and Skills Australia Discussion Paper. The discussion paper provided an update on the proposal for JSA’s ongoing arrangements and invited views to inform how JSA would operate. Submissions closed on 10 February 2023, with 135 submissions received.

The discussion paper outlined the following as common themes raised by stakeholders, for JSA to:

• involve state and territory governments as major purchasers of training and ensure jurisdictional needs are considered, local knowledge informs analysis and products, and more targeted solutions are enabled
• have a multi-disciplinary board, with industry and union representation
• provide more granular data and analysis to inform workforce planning and funding decisions at state and regional levels, and to inform place-based solutions
• provide insights about under-employment, and how to create conditions and pathways to better use the skills and abilities of all Australians, particularly those traditionally disadvantaged
• provide information about workforce supply and demand to understand barriers to participation
• better guide Jobs and Skills Councils to improve workforce planning and training product design
• play a central role in workforce planning and career advice, while also coordinating skills, employment, and migration settings
• provide economy-wide advice that includes higher education (p. 6).

The discussion paper stated that the Government had used these themes in establishing JSA and to inform its proposed final form (p. 6). Themes still under consideration included JSA’s role as an advisory body, and its positioning within the broader skills system.

Committee consideration

The Bill has been referred to the Senate Education and Employment Legislation Committee for inquiry and report by 24 April 2023.[1]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills had no comment on the Bill (p. 14).

Policy position of non-government parties

Coalition Senators provided additional comments in the Education and Employment Legislation Committee’s report on the originating Bills, raising issues about abolishing the NSC, and arrangements and timing for the new JSA.

Coalition Senators supported the objectives of the Bill in principle, while also noting that ‘the proposed functions and role of JSA strongly resemble the functions and role of the existing National Skills Commission’ (p. 25), subsequently referring to JSA as ‘a rebranding exercise’ (p. 26). They expressed concern that the Labor Government was moving to abolish the NSC without having a detailed final plan of what the final JSA would look like (p. 25). Noting the interim model was not intended to continue for longer than 12 months, the Coalition Senators cautioned that:

if the Albanese Labor Government cannot finalise and legislate the final model of JSA in this timeframe, the nation will be worse off than where we are in terms of independent advice on the future needs of skills training (p. 26).

In the second reading debate in the House of Representatives on 30 March 2023, Coalition MPs indicated their support for this Bill, while also proposing amendments in relation to the membership of the Ministerial Advisory Board and the proposed timeframe for review of the operation of the Act (discussed further in relation to key provisions).

Position of major interest groups

As noted above, DEWR invited submissions on the Jobs and Skills Australia Discussion Paper, which closed in February 2023.

Overall, in the submissions and feedback identified there was broad support for the role of JSA. For example, the Australian Chamber of Commerce and Industry (ACCI) supported the creation of JSA and, while acknowledging the work begun under the NSC, expressed its hope that JSA would address shortcomings of the NSC (p. 1). The Australian Industry Group (Ai Group) hosted a webinar with JSA Interim Director Professor Peter Dawkins on 9 February 2023 to discuss the establishment of JSA and its short and medium-term goals.[2] Ai Group Chief Executive Innes Willox expressed enthusiasm for JSA’s role in facilitating collaboration between industry and government to map skills needs of the future:

“So, planning, collaboration and cohesion in this (skills) space is incredibly important, and that's why we're excited about the development of JSA, because of all the benefits it can potentially bring to workplaces,” Mr Willox said.

However, although the Australian Council of Trade Unions (ACTU) identified JSA as a ‘golden opportunity’, it was critical of the proposed model of JSA. The ACTU argued that the JSA, like the NSC, reflected ‘a complex and bureaucratic structure that relegates industry expertise to an advisory role funnelled through a bureaucrat who will largely be beholden to the Department for day-to-day advice’ (p. 1). It called for JSA to operate independently from DEWR ‘to ensure that advice given, and decisions taken, by JSA are not unduly influenced by Departmental concerns’ (p. 2).

Stakeholders expressed a range of views about who should be represented on the advisory body of JSA. The discussion paper emphasised the tripartite nature of the proposed advisory body, defining ‘Tripartism/Tripartite partnerships’ as:

The Australian Governments [sic] approach to genuine consultation, working with State and Territory governments, unions, and industry (p. 14).

While some stakeholders welcomed the proposed approach, others called for a broader range of representation, while others cautioned against extending beyond a tripartite model.

The ACCI supported board membership comprising an equal membership of unions and employer groups, balanced jurisdictional representatives and appropriate expertise. In addition, the ACCI recommended the inclusion of a representative from the skills training sector on the board.

Stakeholders from the education and training sector also argued for the importance of the inclusion of education provider representatives on JSA’s advisory body. For example, TAFE Directors Australia (TDA) stated it ‘supports the advisory body and the breadth of representation on it’, while also arguing that ‘to be successful, it will be essential JSA engage fully with the TAFE sector’ (p. 2). Universities Australia opined:

to ensure JSA’s success, the proposed tripartite model should make clear that education providers, including universities, other higher education providers and VET providers, are specifically represented in the advisory body to the JSA commissioner (p. 2).

Women in Adult and Vocational Education (WAVE) and Equality Rights Alliance (ERA) argued that ‘JSA’s tripartite environment must include education and community experts’ (p. 19). WAVE and ERA also called for the governance and advisory structures to centre the lived experiences of users, including students, trainees and apprentices; businesses and employers; and industry peak bodies, arguing that JSA ‘needs to hear about the experiences and voices of those in our community who face intersectional disadvantage particularly when it comes to education and employment’ (p. 10). It regarded this as particularly important to enable JSA to fulfil its mandate around equity and inclusion (p. 11).

The ACTU was wary that the description of the advisory body seemed to move beyond tripartism:

Our understanding of a tripartite body is that it is composed of equal representation from unions, employers and government, with no other representatives included. The Discussion Paper outlines that the advisory body would include representatives from State and Territory Governments but also includes ‘independent experts’. While numbers are never mentioned, the long list of people involved and the fact that it is likely each state and territory would likely be represented individually implies that industry representatives are unlikely to represent the plurality of members of the body.

It is critical that the board, as we argue it must be constituted, is not dominated by a combination of state government representatives and nominally independent experts. As outlined above, the domination of non-industry viewpoints has been a major issue in the skills space for a number of years (p. 4).

The composition of the Ministerial Advisory Board as proposed in the Bill is discussed further in the ‘Key issues and provisions’ section.

Financial implications

The Bill’s Explanatory Memorandum states that there will be minimal financial impact from the introduction of the Bill and that the 2022–23 Budget had provided $12.9 million to support the establishment of JSA. The 2022–23 October Budget included this funding over 3 years from 2022‑23 (p. 100).

The Bills Digest for the originating Bills, notes the statement in the relevant Explanatory Memorandum that JSA would be funded from savings from abolishing the NSC (p. 6). The 2022–23 October Budget also identified savings from employment and workplace relations measures it would cease or not proceed with (p. 99).

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[3]

Parliamentary Joint Committee on Human Rights

At the time of writing this Bills Digest, the Parliamentary Joint Committee on Human Rights has not commented on the Bill.

Key issues and provisions

Definitions

Items 3 and 5 insert new definitions into section 4 of the JSA Act, including for the JSA Commissioner, the JSA Deputy Commissioners and the Ministerial Advisory Board. Item 4 repeals the definition of the JSA Director which will be redundant.

A number of the Bill’s provisions are consequential amendments to incorporate the change in title from JSA Director to the JSA Commissioner, the new Deputy Commissioner roles and the new Ministerial Advisory Body. These provisions are not discussed here.

The role and function of JSA

Part 2 of the JSA Act establishes JSA and sets out its functions. Item 6 of the Bill adds proposed paragraph 5(c) to the simplified outline of Part 2 to make clear that broad consultation is one of JSA’s main functions.

Item 7 repeals and replaces section 7 of the JSA Act regarding the composition of JSA. Under proposed section 7 the composition of JSA will reflect the new roles of JSA Commissioner (replacing the role of the JSA Director), JSA Deputy Commissioners, and the ‘staff made available to assist the JSA Commissioner under sections 14 and 15’. (Generally, these will be Australian Public Service employees or other persons engaged under the Public Service Act 1999.)

Section 8 of the JSA Act establishes 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), JSA is part of DEWR. Item 8 of the Bill repeals and replaces the note at the end of section 8 to provide clarity. The ACTU’s submission on the discussion paper argued that this arrangement weakened JSA and called for the body to operate independently from DEWR (p. 2). In the second reading debate, Shadow Minister for Industry, Skills and Training Sussan Ley similarly argued that JSA would not be ‘truly independent’ and criticised the Government’s approach as a cost-saving measure:

Whatever government may say, Jobs and Skills Australia cannot credibly claim that it will be truly independent. We've raised these concerns with government and we've been surprised with the response. We were not told that this approach would deliver better outcomes nor that it was informed by expert advice or stakeholder input. No, we were told that this is a cost-management exercise, that in a fiscally tight environment this government cannot find the money to properly fund what we were promised would be a game-changing and independent workforce agency.

Provision of advice

Section 9 of the JSA Act sets out the functions of JSA. Existing paragraph 9(1)(a) establishes JSA’s role as an advisory body to the Minister or Secretary in relation to:

• Australia’s current and emerging labour market: subparagraph 9(1)(a)(i)
• Australia’s current, emerging and future skills and training needs and priorities (including in relation to apprenticeships): subparagraph 9(1)(a)(ii)
• the adequacy of Australia’s vocational education and training (VET) system: subparagraph 9(1)(a)(iii)
• issues relating to skills, training and workforce needs in regional, rural and remote Australia: subparagraph 9(1)(a)(iv)
• pathways into VET and between VET and higher education: subparagraph 9(1)(a)(v)
• opportunities to improve employment and education and training outcomes for cohorts that have historically experienced labour market disadvantage and exclusion: subparagraph 9(1)(a)(vi)
• opportunities to remove barriers to gender equality in training and the labour market: subparagraph 9(1)(a)(vii).

Items 10–12 of the Bill amend the matters on which JSA provides advice to the Minister or Secretary. Item 10 amends subparagraph 9(1)(a)(ii) to add ‘VET and higher education’. The Explanatory Memorandum states that ‘this change reflects the significance of VET and higher education to Australia’s current and future training needs and priorities’ (p. 10). A number of stakeholders’ submissions on the discussion paper emphasised the importance of higher education and VET in skills development and workforce planning. TDA advocated for ‘parity of esteem’ between the VET and higher education sectors and argued for JSA’s role to advise how the tertiary sector (that is, VET and higher education) can deliver solutions for industry and employers (p. 4).

Item 11 repeals subparagraphs 9(1)(a)(iv) and (vi) relating to regional, rural and remote skills, training and workforce needs and outcomes for disadvantaged cohorts respectively. These areas of focus are reincorporated into broader aspects of JSA’s functions (discussed below).

Item 12 inserts proposed subparagraph 9(a)(viii) to specify that the impact of workplace arrangements, including insecure work, on economic and social outcomes is an area on which JSA will provide advice. The Explanatory Memorandum notes that insecure work is not defined in the Bill. This enables JSA to ‘have regard to the continually evolving nature of insecure work and related case law’ (p. 11).

Amended functions of JSA

Item 13 expands the functions of the JSA, inserting proposed paragraphs 9(ca)–(cd). With proposed paragraph 9(ca), JSA’s role will include the identification of imbalances in the labour market and the analysis of the demand and supply of skills.

Proposed paragraph 9(cb) specifies that it is a function of JSA to analyse skills and workforce needs, including in regional, rural and remote areas and in relation to migration. Both the need for consideration of the skills and workforce needs of regional, rural and remote Australia (see, for example, Regional Universities Australia’s submission) and for JSA to have a role in considering the role of migration (see, for example, ACTU’s and ACCI’s submissions) were raised by stakeholders in response to the discussion paper.

Proposed paragraph 9(cc) states one of the functions of JSA is to undertake studies, including on opportunities to improve education, training and employment outcomes for historically disadvantaged and excluded cohorts. Whereas the existing JSA Act includes matters relating to improving the outcomes for disadvantaged cohorts (currently in subparagraph 9(1)(a)(vi) which is repealed by item 11) in JSA’s advisory capacity, this proposed paragraph enables JSA to undertake studies on such issues.

Proposed paragraph 9(cd) states that one of the functions of JSA will be to contribute to industry consultation forums. The Explanatory Memorandum provided as an example of such consultation that:

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 (p. 12).

Minister O’Connor announced the establishment of 10 Jobs and Skills Councils (JSCs) in December 2022. JSCs, formerly known as Industry Clusters, would work in partnership with JSA to align workforce planning needs. Minister O’Connor announced 10 industry groupings from the first stage of the grant opportunity process. In its submission to the Jobs and Skills Australia Discussion Paper, TDA highlighted the danger of lack of clarity between the roles of JSA and JSCs and welcomed JSA ‘playing a role to minimise duplication of effort, and not repeat the mistakes of the precursors of the JSCs’ (p. 3).

Currently, subsections 9(2) to (4) of the JSA Act require JSA to report annually on Australia’s current, emerging and future skills and training needs and priorities. Item 14 repeals these subsections and they are subsequently replaced by equivalent reporting requirements in proposed section 27A by item 34 of the Bill.

Annual work plan

Item 15 inserts proposed section 10A at the end of Part 2 of the JSA Act (which deals with the establishment and the functions of JSA) so that the JSA Commissioner must prepare an annual work plan and publish it on the JSA website. The work plan must set out the key outcomes and priorities for the JSA Commissioner for the financial year: proposed subsection 10A(2). The JSA Commissioner is required to consult with the Minister and the Ministerial Advisory Board and invite public submissions in preparing the work plan: proposed paragraphs 10A(3)(a) and (c). In addition, the JSA Commissioner may consult with other Ministers and other people that the JSA Commissioner considers appropriate: proposed paragraph 10A(3)(b).

Establishing the JSA Commissioner, Deputy Commissioners and the Ministerial Advisory Board

Part 3 of the JSA Act established the interim role and functions of the JSA Director and staff assisting. Items 18, 20 and 21 of the Bill repeal and replace references to JSA Director with references to JSA Commissioner. The JSA Commissioner retains the functions of the former JSA Director.

Item 22 inserts two new sections which establish the roles of up to two JSA Deputy Commissioners: proposed section 13A. Their functions are to assist the JSA Commissioner and undertake other functions that are conferred on them by the rules, the JSA Act, or any other law of the Commonwealth and do anything that is incidental or conducive to the performance of those functions: proposed section 13B.

As is currently the case in relation to the JSA Director, the JSA Commissioner is to be assisted by Departmental employees made available to the JSA Commissioner by the Secretary: proposed section 14(1) repealed and replaced by item 23.

Section 15 of the JSA Act currently provides for other persons assisting the JSA Director. Item 26 repeals subsections 15(1) and (2) and inserts proposed subsections 15(1)-(4).

Proposed subsection 15(1) retains the provision for the JSA Commissioner to be assisted by employees of Agencies (within the meaning of the Public Service Act 1999). Proposed subsection 15(2) adds a provision for the JSA Commissioner to make arrangements with states or territories to second officers or employees from a state or territory government or government authority. In that case, the Commonwealth may reimburse a state or territory for the person’s services: proposed subsection 15(3).

Item 30 inserts proposed section 15A enabling the JSA Commissioner to engage contractors. The Explanatory Memorandum states that this supplements the existing section 16 which limits the JSA Director to engaging consultants (p. 16).

The Ministerial Advisory Board

Item 31 inserts proposed sections 16A to 16G at the end of Part 3 of the JSA Act relating to the new Ministerial Advisory Board. Proposed section 16A requires that the Minister establish, within 12 months of the section commencing, a Ministerial Advisory Board to advise the Minister and the JSA Commissioner in relation to the performance of the functions of JSA: proposed subsection 16A(1).

Proposed subsection 16A(2) requires the Minister to determine:

• the Ministerial Advisory Board’s terms of reference: proposed paragraph 16A(2)(a)
• the terms and conditions of appointment of the members of the Ministerial Advisory Board, other than those provided for elsewhere in the Part: proposed paragraph 16A(2)(b)
• the procedures to be followed by the Ministerial Advisory Board: proposed paragraph 16A(2)(c).

The Explanatory Memorandum provides examples of matters the Minister could determine in accordance with proposed section 16A(2), such as establishing procedures to be followed where the Chair is absent, or the formation of sub-committees for the purposes of the Board giving advice about a particular matter (p. 17).

Proposed subsection 16A(3) requires that the JSA Commissioner must have regard to any relevant advice given to the JSA Commissioner by the Ministerial Advisory Board when performing the JSA Commissioner’s functions under the Part. This provision does not limit the matters to which the JSA Commissioner may have regard (proposed subsection 16A(4)).

Membership of the Ministerial Advisory Board

Proposed section 16B provides for the membership composition of the Ministerial Advisory Board. It establishes that the Ministerial Advisory Board comprises up to 13 members:

• a Chair
• 2 members representing the interests of the states and territories
• 3 members representing employee organisations
• 3 members representing employer organisations
• not more than 4 other members.

As noted above in relation to stakeholder feedback on the discussion paper, stakeholders had diverse opinions on the make-up of the Ministerial Advisory Board.

The Explanatory Memorandum states that the composition of the membership is to ensure that the interests of the states and territories will be appropriately represented, and that employer and trade union groups will have appropriate and equal representation on the Board. The Explanatory Memorandum also states that the remaining 4 positions would not be available to representatives of employer or trade-union groups (p. 17).

The ACTU’s concerns about states and territories each being represented individually on the advisory body and thus contributing to ‘the domination of bureaucrats at both the federal and state level’ (p. 4), have not transpired in the proposed Bill, with only 2 of the possible 13 members to represent the states and territories. However, with the Board to have up to 4 members who are not representatives of employer or trade-union groups, it is unclear whether this will resolve the ACTU’s concerns about the ‘domination of non-industry viewpoints’ (p. 4).

Amendments put forward by Shadow Minister for Industry, Skills and Training Sussan Ley proposed to remove the inclusion of 3 members representing employee organisations (proposed paragraph 16B(1)(c)), instead replacing them with one member representing small business, and 2 members representing regional, rural and remote Australia. A further amendment proposed a requirement for the Minister, in appointing members of the Ministerial Advisory Board, to ensure that members include a representative from each state and territory. At the time of writing this Bills Digest the debate on the Bill in the House of Representatives had not been finalised.

Members of the Ministerial Advisory Board are to be appointed by the Minister by written instrument on a part-time basis: proposed subsection 16B(2). The instrument specifies the time period of the appointment, which is not to exceed 3 years: proposed subsection 16B(3).

Proposed subsection 16B(4) sets out eligibility criteria for appointment to the Ministerial Advisory Board. The Minister must be satisfied that the person has substantial knowledge or experience in at least one of the following areas:

• VET
• higher education
• industry
• employment
• industrial relations (including trade unions)
• labour market analysis
• workforce planning
• economics
• governance or
• any other appropriate field of expertise: proposed paragraph 16B(4)(a).

In the alternative, proposed paragraphs 16B(4)(b) and (c) respectively allow the Minister to appoint a person to the Ministerial Advisory Board if they have lived experience of disadvantage in the labour market or experience representing people with such lived experience. As noted above, lived experience of people facing disadvantage was raised by WAVE and ERA in their submission on the discussion paper.

Proposed subsection 16B(5) specifies that members of the Ministerial Advisory Board are not officials of the Department for the purposes of the PGPA Act. As such, members do not have the duties and obligations of an official under the PGPA Act.

Proposed subsection 16B(6) requires members of the Ministerial Advisory Board to act in an impartial and independent manner in relation to their advice to the Minister and the JSA Commissioner.

Remuneration

Remuneration of members of the Ministerial Advisory Board is to be determined by the Remuneration Tribunal: proposed section 16C. Where there is no such determination, the member is to be remunerated as prescribed by the rules: proposed subsection 16C(1). Proposed subsection 16C(2) states that members are not entitled to be paid remuneration if they hold an office or appointment, or are otherwise employed on a full-time basis by:

(a)   a State; or

(b)   a corporation (a public statutory corporation) established for a public purpose by a State law, other than a tertiary education institution; or

(c)   a company limited by guarantee where the interests and rights of the members in or in relation to the company are beneficially owned by a State; or

(d)   a company in which all the stock or shares are beneficially owned by a State or by a public statutory corporation.

A note to the proposed subsection clarifies that, consistent with subsection 7(11) of the Remuneration Tribunal Act 1973, a member of the Ministerial Advisory Board that has a similar such relationship with the Commonwealth or a Territory is also not entitled to be paid remuneration.

A member is to be paid allowances as prescribed by the rules: proposed subsection 16C(3).

Apart from proposed subsection 16C(2), the section has effect subject to the Remuneration Tribunal Act 1973.

Resignation and termination of members

Proposed sections 16D and 16E set out provisions for members of the Ministerial Advisory Board to resign or have their appointment terminated, respectively.

Reasons for which the Minister may terminate the appointment of a member of the Ministerial Advisory Board include for misbehaviour or if the member is unable to perform their duties because of physical or mental incapacity: proposed subsection 16E(1).

The Minister may also terminate a member’s appointment for bankruptcy or insolvency or if the member fails to comply with the requirement to give advice in an impartial and independent manner: proposed subsection 16E(2).

Disclosure of interests

Members of the Ministerial Advisory Board must disclose their interests to the Minister in writing: proposed section 16F. Proposed section 16G sets out requirements relating to members disclosing their interests to the Ministerial Advisory Board when they have an interest in a matter to be considered by the Board, including documenting the disclosure and the member not taking part in decisions or being present during deliberations relating to the matter.

Administration of JSA

Part 4 of the JSA Act provides for the administration of JSA. Item 32 of the Bill repeals the existing Part 4 and replaces it with a new Part 4 which sets out administrative arrangements relating to the JSA Commissioner and JSA Deputy Commissioners.

Within proposed Part 4, proposed section 18 provides for the appointment of the JSA Commissioner, replacing provisions relating to the appointment of the JSA Director. It largely replicates the previous provisions which related to the JSA Director; however, whereas the appointment of the JSA Director was not to exceed one year (subsection 18(2)), reflecting the interim nature of the role, the appointment of the JSA Commissioner is not to exceed 5 years: proposed subsection 18(2). Like the JSA Director, the JSA Commissioner may be reappointed.

Arrangements for the appointment of a JSA Deputy Commissioner replicate those for the JSA Commissioner: proposed section 18A.

Provisions for a Commissioner in the Bill replicate the provisions in the JSA Act for the JSA Director in relation to acting appointments (proposed section 19), remuneration (proposed section 20), leave of absence (proposed section 21), engaging in other paid work (proposed section 22), other terms and conditions (proposed section 23), resignation (proposed section 24) and termination (proposed section 25).

Jobs and Skills report

Item 34 of the Bill inserts provisions relating to the preparation of an annual jobs and skills report with proposed section 27A. As noted above, this essentially moves the existing provisions of subsections 9(2) to (4) of the JSA Act which are repealed by item 14 of the Bill to Part 5 of the JSA Act where, as the Explanatory Memorandum notes, ‘they better fit with the structure of the Act’ (p. 24).

Review of the operation of the Act

Item 37 inserts proposed section 29A which requires the Minister to commence a review of the operation of the JSA Act within 2 years of the proposed section commencing. A formal report of the review is to be prepared: proposed subsection 29A(2). A copy of the report must be tabled in each House of the Parliament within 15 days after its completion: proposed subsection 29A(3).