Apprenticeships, Skills, Children And Learning Bill - continued          House of Lords

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Apprenticeship frameworks: Wales

Clause 16: Welsh issuing authority, Clause 17: Issue of apprenticeship framework etc.: Wales, Clause 18: Recognised Welsh frameworks: notification and publication requirements, Clause 19: Submission of draft apprenticeship framework for issue: Wales, Clause 20: Transitional provision for apprenticeship frameworks: Wales

54.     These clauses relate to apprenticeship frameworks in Wales. In particular, clause 16 provides Welsh Ministers with the power to designate a person to issue apprenticeship frameworks in Wales, or to issue apprenticeship frameworks relating to a particular sector. The clauses also make provision about the publication of apprenticeship frameworks in Wales. Broadly speaking, these provisions mirror those made by clauses 11 to 15 in relation to England.

Specification of apprenticeship standards: England

55.     Clauses 21 to 25 make provision about the preparation, modification and contents of the specification of apprenticeship standards for England. Apprenticeship frameworks must conform to the requirements of the specification of apprenticeship standards for England if they are to be issued by the English issuing authority as “recognised English frameworks”. The specification could contain, for example, requirements as to competence and knowledge based elements, transferable skills such as key skills in literacy and numeracy or functional skills in English and Maths, employment rights and responsibilities and clear progression routes. It must require each recognised English framework to identify a qualification that is the “principal qualification” for the purposes of the framework.

Clause 21: Duty to prepare and submit draft specification of apprenticeship standards: England

56.     This clause empowers the Secretary of State to direct the Chief Executive of Skills Funding to produce a draft specification of apprenticeship standards for England.

Clause 22: Order bringing specification of apprenticeship standards for England into effect

57.     This clause empowers the Secretary of State to give effect by order, which would be subject to the negative resolution procedure, to the specification of apprenticeship standards for England, provided the contents comply with clause 25. Subsection (3) requires that there may be only one specification of apprenticeship standards for England at any time.

Clause 23: Modification of specification of apprenticeship standards for England

58.     This clause allows the Secretary of State to direct the Chief Executive of Skills Funding to modify the specification of apprenticeship standards for England provided the contents of the specification, as modified still complies with clause 25.

Clause 24: Replacement or modification of specification of apprenticeship standards: recognised English frameworks

59.     If a new specification of apprenticeship standards for England is given effect to under clause 22, or if an existing specification is modified under clause 23, frameworks that have already been issued under clause 12 may not comply with the requirements of the new or modified specification. Subsection (1) provides that a recognised English framework that fails to comply with a new or modified specification will not automatically cease to be recognised. But subsection (2) provides that an order under clause 22, which would be subject to the negative resolution procedure, may provide for such a framework to cease to have effect as a recognised English framework.

Clause 25: Contents of specification of apprenticeship standards for England

60.     This clause sets out what must be included in the specification of apprenticeship standards for England. Subsection (1) provides that the specification must specify requirements in relation to the content of recognised English frameworks at level 2 (known as Apprenticeships); and level 3 (known as Advanced Apprenticeships); and that it may specify requirements in relation to the content of recognised English frameworks at other levels. For instance, the specification might make provision about the content of recognised English frameworks for level 4 apprenticeships (known as Higher Apprenticeships). The effect of subsection (2) is that the specification must require English frameworks to specify requirements for the issue of apprenticeship certificates, including levels of attainment required for the award of a certificate. It must also require each framework to identify the principal qualification in respect of that framework.

Specification of apprenticeship standards: Wales

Clause 26: Specification of apprenticeship standards for Wales, Clause 27: Modification of specification of apprenticeship standards for Wales, Clause 28: Replacement or modification of specification of apprenticeship standards: recognised Welsh frameworks, Clause 29: Contents of specification of apprenticeship standards for Wales

61.     These clauses make provision in respect of the specification of apprenticeships standards for Wales. Welsh Ministers are given the power to prepare and consult on a draft specification of apprenticeship standards.

Apprenticeship agreements: England and Wales

Clause 30: Meaning of “apprenticeship agreement”

62.     This clause applies to both England and Wales. The apprenticeship agreement will be a contract entered into between the employer and the apprentice. The Government expects that it should set out both the on-the-job training and the learning away from the workstation that will be delivered; make clear what job role an apprentice will be qualified to hold upon completion; and stipulate the supervision that an apprentice will receive throughout the period of the apprenticeship.

63.     Subsection (2) sets out the conditions which must be satisfied by an apprenticeship agreement. The agreement must be in a form to be prescribed by the Secretary of State. Subsection (3) gives the Secretary of State the power to specify provisions which must and must not be included in an apprenticeship agreement. Subsection (4) enables an apprentice to enter into successive apprenticeship agreements relating to the same framework, even where that framework has ceased to be a recognised English framework.

Clause 31: Ineffective provisions in an apprenticeship agreement

64.     This clause provides that if terms are included in an apprenticeship agreement which conflict with provisions that the Secretary of State has required to be included in the agreement, those terms have no effect.

Clause 32: Variation of an apprenticeship agreement

65.     A variation to an agreement might be such that the agreement ceases to be an apprenticeship agreement. Clause 32 provides that a variation of this type will not have effect unless, before it is made, the employer gives the apprentice written notice that it will have this effect.

Clause 33: Status of an apprenticeship agreement

66.     This clause provides that an apprenticeship agreement is not to be treated, for common law or statutory purposes, as being a contract of apprenticeship (as recognised at common law) but is instead to be treated as being a contract of service.

Clause 34: Crown servants and Parliamentary staff

67.     This clause makes particular provision for Crown servants, members of the armed forces and Parliamentary staff. Subsection (5) empowers the Secretary of State to modify the application of the Bill, or of provisions amended or inserted by the Bill, in relation to Crown servants, members of the armed forces, and Parliamentary staff. This power is needed to make the Bill work properly in relation to these classes of person, given their particular circumstances: for instance the fact that they may not have contracts of employment.

Careers education in schools: England

Clause 35: Careers education

68.     This clause amends section 43 of the Education Act 1997, which requires a state secondary school in England to provide pupils with a programme of careers education. The effect of the new subsection (2C) inserted into section 43 by this clause is to require the head teacher of a secondary school, and its governing body or its proprietor, and the local education authority and teacher in charge of a pupil referral unit, to ensure that any consideration of what careers advice would be in the best interests of their pupils includes consideration of whether it would be in any pupils’ best interests to receive careers advice about apprenticeships. In support of this provision, the Government intends issue guidance under section 45A of the Education Act 1997 (as inserted by section 81 of the Education and Skills Act 2008).

Duty to participate in education or training: England

Clause 36: Duty to participate in education or training: apprenticeship agreements.

69.     This clause amends section 2 of the Education and Skills Act 2008. The effect is that a person may satisfy the participation duty imposed by section 2 (duty to participate in education or training) by participating in training in accordance with an apprenticeship agreement.

General

Clause 37: Apprenticeship sectors

70.     This clause requires the Secretary of State to specify apprenticeship sectors. The Government intends that these will be based upon the current sectoral coverage of Sector Skills Councils which are employer-led, independent organisations whose goals are to reduce skills gaps and shortages, improve productivity and increase opportunities to boost the skills and productivity of everyone in the sector’s workforce.

Chapter 2: Study and Training

Clause 39: Employer support for employee study and training

71.     This clause inserts a new Part 6A (sections 63D to 63K) and two new sections (47F and 104E) into the Employment Rights Act 1996.

72.     New section 63D introduces a right for qualifying employees to make a statutory application to their employer in relation to study or training - essentially a request to their employer to allow them to undertake study or training, whether in the form of “on the job” training provided by the employer, or separately. The application is called a “section 63D application” in the legislation, but is likely to be known as a “time to train” application or request in practice. Later provisions provide that the request has to be considered by the employer and accepted unless one of the reasons for refusal allowed by the legislation applies.

73.     Under section 63D the request must meet certain conditions in order to qualify for the scheme. For example, it must be for study or training that is intended to improve an employee’s effectiveness at work and the performance of the employer’s business.

74.     The type of training which may be requested is further defined in new section 63E. Subsections (1) and (2) of that section allow a request to be for training of any sort. This means that an employee may request study or training that is undertaken outside the place of work with an external training provider or in-house training provided by the employer. The study or training might also include unsupervised learning, for example e-learning. Subsection (1) also allows for more than one course of training or study to be included in one request. For example a person may have identified that they have a need for basic skills training in numeracy and, following the completion of that training, would wish to undertake a full level 2 course related to their job. An employee would be able to include both courses of training in their request.

75.     Subsection (3) of section 63E provides that it is not essential that the training lead to the award of a qualification of any sort. It will therefore be possible for an employee to request to undertake any study or training that they think will make them more effective in their current or future role in the employer’s business and improve their employer’s business performance, for example training to become more effective in the use of commercial software packages.

76.     Section 63D defines which employees are eligible to make a request. The Secretary of State may specify in regulations the period employees must have been employed in order to qualify. The intention is that only employees who have been continuously employed by their current employer for 26 weeks or more will be eligible. However, the regulation making power will allow different employment durations to be set in the future after a period of operation of the policy if required.

77.     Subsection (7) of section 63D lists employees who are not eligible to make a request for study or training under these provisions. The effect of this is to exclude employees whose learning needs are already catered for in other ways, for example employees who:

  • are of compulsory school age (subject to restrictions, it is possible for people of compulsory school age to undertake employment) (paragraph (a)); or

  • are young people who already have a statutory right to paid time off to undertake study or training (paragraph (d)); or

  • are 16 or 17 year olds who are already under a duty to participate in education or training as a result of Part 1 of the Education and Skills Act 2008 (paragraph (b)).

78.     Agency workers are also excluded. In addition, the Secretary of State has the power to make regulations specifying other types of person to be excluded from the right. This will allow the Secretary of State flexibility to react to changes as needed and to exclude other employees from being qualifying employees if appropriate.

79.     Subsection (8) of section 63D provides that an employee and employer can make other arrangements in relation to study or training if they so choose. Employees may choose to ask for training in ways other than those specified in the new Part 6A and may choose not to exercise their statutory right under this Part, for example if their employer is already undertaking annual performance reviews which result in their training needs being met.

80.     To ensure the employee has considered and explained their study or training needs, how the proposed study or training would impact on the business and what the benefits to the employer are thought to be, section 63E(4) sets out precisely what an employee must include in their request. They must give details of the subject matter of the study or training, how long it would last, who would provide or supervise it and whether it would lead to a qualification, and state how they think it would make them more effective and improve the performance of the employer’s business. Subsection (5) also includes a power for the Secretary of State to make regulations specifying the form of the application.

81.     New section 63F specifies that employers must deal with requests under section 63D in line with regulations made by the Secretary of State. Subsection (1) of section 63F means that an employer has to deal with only one application from the employee in any 12 month period. However, in certain circumstances, an employer could be required to disregard an application which has been submitted. These circumstances would be set out in regulations made under section 63F(3).

82.     Subsection (4) of section 63F enables the Secretary of State to make regulations specifying how employers should deal with an application. The Government intends that regulations made in exercise of this power will set out the procedure for employers to follow. For example, they would include requirements concerning the holding of a meeting to discuss the application; for the employer to give the employee notice of the employer’s decision on the application; about the procedure for exercising the right of appeal; for applications to be treated as withdrawn in certain circumstances; and in relation to companions which the employee may bring to meetings. The intention is to use the procedure set out in regulations made under the flexible working provisions (Part 8A of the Employment Rights Act 1996) as a model.

83.     An employer may refuse a request for “time to train” only where they think that certain permissible business reasons apply. These are listed in subsection (7) of section 63F. An employer could refuse a request where they thought that the training would not improve the employee’s effectiveness in the employer’s business or improve the performance of the business; or that the study or training would impose a burden of additional costs on the business; or that it would mean that the business could not service its customers properly; that work could not be re-organised among existing staff; that there would be a negative impact on the quality of the output of the business; that there would be a negative impact on the performance of the business; that there would not be enough work for the employee during the periods during which the employee proposes to work; or that the business has planned structural changes. The Secretary of State has a power to make regulations to add reasons to this list.

84.     An employer could also refuse part of a request for one of the reasons above. This could mean that an employee requesting to undertake two courses may have only one approved.

85.     Where an employer agrees to a request for “time to train” an employee will be required under the new section 63H to inform their employer if they do not start the course or cease to attend the course. They will also need to let them know if they change the type of training they undertake from what they have agreed with the employer. Regulations made under this section may specify how employees should inform their employer of any changes in the training.

86.     New section 63I makes provision for an employee to complain to an employment tribunal in two specific circumstances:

  • where the employer has failed to comply with the duties concerning the consideration of a request (including procedural requirements); and

  • where the employer’s decision to refuse a request, or part of it, was based on incorrect facts

87.     A complaint to an employment tribunal must (unless the tribunal exercises its discretion to grant an extension) be made within three months of either an employer notifying an employee following an appeal of the decision to refuse a request, or (in certain kinds of cases specified by the Secretary of State) from the point where the employer is alleged to have failed to comply with a duty.

88.     Subsection (4) of section 63I excludes employees from complaining to employment tribunals under section 63I in relation to the right to be accompanied at meetings, if provision about complaints in such circumstances has instead been made in regulations under section 63F.

89.     New section 63J provides that an employment tribunal, where they find the applicant’s complaint well-founded, must make a declaration to that effect and may require the employer to reconsider the request for “time to train”. They may also make an award of compensation. The limit on the number of weeks’ pay which a tribunal may award as compensation will be specified in regulations.

90.     New section 63K provides that regulations made under these new provisions may make different provision for different cases.

91.     New section 47F ensures that an employee has a right not to be subjected to any detriment by their employer as a result of making, or proposed to make, a request for “time to train”, or submitting a complaint to an employment tribunal under section 63I, or alleging circumstances that would justify such a claim.

92.     New section 104E ensures that an employee would be able to claim that they were unfairly dismissed if the reason for their dismissal was that they made, or proposed to make, a request for “time to train” or submitted a claim to an employment tribunal under section 63I, or alleged circumstances that would justify such a claim.

Schedule 1: Employee study and training: minor and consequential amendments

93.     Schedule 1 makes minor and consequential amendments to the Employment Rights Act 1996, the Trade Union and Labour Relations (Consolidation) Act 1992 and the Employment Tribunals Act 1996 which are consequent upon the new statutory right for employees to request “time to train”. In particular, paragraph 12 will allow the Advisory, Conciliation and Arbitration Service to prepare a scheme to provide conciliation of disputes involving proceedings, or claims which could be the subject of proceedings, before an employment tribunal under section 63I.

PART 2: LEA FUNCTIONS

Education and training for persons over compulsory school age

Clause 40: Education and training for persons over compulsory school age: general duty

94.     This clause inserts sections 15ZA and 15ZB into the Education Act 1996. These new sections set out the new core responsibilities being transferred to local education authorities from the Learning and Skills Council in respect of the provision of education and training for young people.

95.     Section 15ZA requires local education authorities to secure enough suitable, full- and part-time, education and training opportunities to meet the reasonable needs of the following people in their area:

  • young people who are over compulsory school age but under 19; and

  • learners aged 19 or over, but under 25, who have (or should have had) a learning difficulty assessment under section 139A or 140 of the Learning and Skills Act 2000.

96.     Responsibility for all other learners aged 19 or over will fall to the Chief Executive of Skills Funding as covered in Part 4 of the Bill.

97.     Local education authorities will have powers to secure this provision either within or outside their areas to enable them to secure the most appropriate provision for young people and reflect the normal means by which learners travel to their places of learning (“travel-to-learn patterns”). In securing education and training opportunities, local education authorities must take account of people’s ages, abilities and aptitudes; any learning difficulties they may have; the quality of education or training; and the locations and times at which those opportunities are provided. In performing these functions, local education authorities must also act with a view to encouraging diversity (in both type of provider and provision) and increasing opportunities for young people to exercise choice; support those learners who are subject to the duty to participate in education or training until they reach the age of 18 (once that duty comes into force); and make the best use of the authority’s resources and avoid provision that might give rise to disproportionate expenditure.

98.     Subsection (6) requires a local education authority to co-operate with the Chief Executive of Skills Funding in determining and securing the provision of apprenticeship training under subsection (1).

99.     Local education authorities will also have powers to fund provision for the duration of the course being undertaken by a young person, even if that course continues after they have reached the age of 19 (or 25 in the case of a learner with a learning difficulty assessment).

100.     Subsection (9) provides definitions for education and training. “Learning difficulty assessment” is defined in section 13 of the Education Act 1996 (as amended by Schedule 2 to the Bill).

101.     Local education authorities will meet this duty by commissioning provision which meets the requirements set out in section 15ZA. Commissioning is a cycle of activity that ensures that the courses learners want to take — “learner demand” — is understood and the right provider is funded or contracted with to meet that demand. The Government envisages that local education authorities will work together in sub-regional groupings to plan and agree how to commission provision across an area. These groupings will reflect travel-to-learn patterns of young people. Local education authorities will develop commissioning plans (working with other local education authorities and regional partners such as the Government Offices and Regional Development Agencies) which will be signed off by the YPLA (see Part 3 of this Bill) who will ensure that all local education authority plans are coherent with the plans of other local education authorities and are in budget. The YPLA will then ensure provision is funded in accordance with the planned provision.

102.     Section 15ZB requires local education authorities to co-operate with each other in the exercise of their new duties under section 15ZA(1). The Government intends that this duty will support sub-regional working and reflect the need of local education authorities to work with each other in securing education and training opportunities across an area. This duty will require co-operation by a local education authority with only those other local education authorities which may provide education or training for young people in the authority’s area. In the vast majority of cases, the Government expects that this duty to co-operate will be fulfilled through sub-regional working (as described above), but it also caters for those instances where learners may need to travel to a local education authority outside the sub-regional grouping to receive their education or training.

 
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Prepared: 7 May 2009