Learnership Regulations, 2007

LEARNERSHIP REGULATIONS, 2007

(29 June 2007 - to date)

SKILLS DEVELOPMENT ACT 97 OF 1998

Government Notice 1400 in Government Gazette 19420, dated 2 November 1998. Commencement date: 2 February 1999, unless otherwise indicated

Government Notice R519 in Government Gazette 30010, dated 29 June 2007. Commencement date: 29 June 2007.

I, Membathisi Mphumzi Shepherd Mdladlana, Minister of Labour, in terms of section 36 read with sections 16 and 17 of the Skills Development Act, 1998 (Act No. 97 of 1998) after consultation with the National Skills Authority, hereby make the regulations in the Schedule attached hereto.

(Signed)

MMS MDLADLANA

MINISTER OF LABOUR

SCHEDULE

LEARNERSHIP REGULATIONS, 2007

CONTENTS LIST

1.       Definitions

2.       Registering learnerships

3.       Amending registered learnerships

4.       Deregistration of learnerships

5.       Registering learnership agreements

6.       Commencing education and training under learnerships

7.       Altering terms of learnership agreement

8.       Substituting parties to learnership agreements

9.       Terminating learnership agreements

10.     Decision making by SETA

11.     Record keeping by SETA

12.     Employer agreements with ESDAs

13.     Application for registration of ESDA

14.     Requirements for registration of ESDA

15.     Registration of ESDAs

16.     Conditions for registration of ESDAs

17.     Deregistration of ESDAs

18.     Referral of disputes

19.     Short title

20.     Repeal of regulations

Annexure A:                  Application to register a learnership

Annexure B:                  Learnership agreement

Annexure C:                  Agreement between employer and ESDA

Annexure D:                  Application to register an ESDA

Annexure E:                  ESDA registration certificate

1.       Definitions

In this Schedule, any word or expression to which a meaning has been assigned in the Act shall have the meaning so assigned and -

‘employer’ includes a lead employer;

‘ESDA’ means Employment and Skills Development Agency contemplated in section 17(7) of the Act;

‘ETQA’ means an education and training quality assurance body contemplated in section 5(1)(a)(ii)(bb) of the South African Qualifications Authority Act;

‘lead employer’ means a lead employer contemplated in regulation 5(4);

‘lead training provider’ means a lead training provider contemplated in regulation 5(5);

‘learnership’ means a learning programme which -

(i)       consists of a structured learning component; the learnership includes practical work experience of a specified nature and duration;

(ii)      the learnership would lead to a qualification registered by the South African Qualifications Authority and related to an occupation, and

(iii)     the intended learnership is registered with the Director-General in the prescribed manner.

‘learnership agreement’ means a learnership agreement contemplated in section 17(1) of the Act;

‘qualification associated with a learnership’ means the qualification contemplated in section 16(c) of the Act;

‘section 18(1) learner’ means a learner who was in the employment of the employer party to the learnership agreement when the agreement was concluded;

‘section 18(2) learner’ means a learner who was not in the employment of the employer party to the learnership agreement when the agreement was concluded;

‘submit’ means to deliver by hand or registered post or to transmit a communication by electronic mechanism as a result of which the recipient is capable of printing the communication;

‘the Act’ means the Skills Development Act, 1998 (Act No. 97 of 1998); and

‘training provider’ includes a lead training provider.

2.       Registering learnerships

(1)      A SETA applying to register a learnership in terms of section 16 of the Act must complete the registration form set out in Annexure A to these Regulations.

(2)      The completed registration form referred to in subregulation (1) must be signed by the executive officer of the SETA and be submitted to the Director-General.

(3)      If the SETA applying to register a learnership is not the ETQA accredited for the relevant qualification associated with the learnership, the SETA must submit proof to the satisfaction of the Director-General that it has made adequate arrangements with the relevant ETQA -

(a)      to ensure the quality management of the education, training and assessment of learners under the learnership; and

(b)      to issue certificates of achievement for the qualification.

(4)      Upon registration of a learnership, the Director-General must -

(a)      allocate and issue a learnership number; and

(b)      issue a certificate of registration to the SETA.

(5)      The Director-General may require a SETA to submit information, particulars or documentation prior to the registration of a learnership within time-periods stipulated by the Director-General.

3.       Amending registered learnerships

(1)      A SETA may apply in writing to the Director-General to amend a registered learnership.

(2)      If the South African Qualifications Authority amends the registration of a qualification associated with a learnership, the relevant SETA must, within 45 working days of the amendment, apply to amend the registered learnership in terms of subregulation (1).

(3)      If the registered learnership is amended, the Director-General must amend the relevant certificate of registration accordingly or issue a new certificate of registration.

(4)      The amendment of a registered learnership does not affect -

(a)      the rights and obligations of the parties to any learnership agreement in respect of that learnership in force at the time of the amendment;

(b)      the validity of any learnership completed by a learner or any qualification associated with the learnership achieved by a learner -

(i)       before amendment of the learnership; or

(ii)      in respect of any period of learnership that is commenced before the amendment of the learnership and which the learner has duly completed.

4.       Deregistration of learnerships

(1)      The Director-General may deregister a registered learnership if -

(a)      the relevant SETA has in writing requested the Director-General to deregister the learnership;

(b)      the qualification associated with the learnership has been deregistered by the South African Qualifications Authority;

(c)      the relevant SETA fails to submit information, particulars or documentation in respect of the learnership in accordance with regulation 2(5); or

(d)      the Director-General is satisfied that there is no longer a need for the learnership due to no enrolments of learners.

(2)      Before deregistering a registered learnership, the Director-General must, -

(a)      publish notice of the intention to deregister and the reasons for doing so in the Government Gazette;

(b)      give interested persons 30 days from the date of notice in the Government Gazette to make representations on why the learnership should not be deregistered; and

(c)      consider those representations, and any views expressed by the National Skills Authority, in reaching a decision.

(3)      The deregistration of a registered learnership does not affect -

(a)      the rights and obligations of the parties to any learnership agreement in respect of that learnership in force at the time of deregistration;

(b)      the validity of any learnership completed by a learner or any qualification associated with the learnership achieved by a learner -

(i)       before deregistration of the learnership; or

(ii)      in respect of any period of learnership that is commenced before the deregistration of the learnership and which the learner has duly completed.

5.       Registering learnership agreements

(1)      A learnership agreement must be in the form set out in Annexure B.

(2)      A SETA may require the parties to a learnership agreement to submit relevant information in addition to that required in terms of subregulation (1).

(3)      A SETA may register a learnership agreement in terms of section 17(3) of the Act only if -

(a)      the Director-General has registered the learnership;

(b)      a completed learnership agreement form referred to in subregulation (1) has been submitted to the SETA;

(c)      all parties to the agreement have signed the agreement and, if the learner is a minor[1], the learner’s parent or guardian has signed the agreement on behalf of the learner

(d)      the employer party to the learnership agreement falls within the scope of coverage of the SETA as determined by the Minister in terms of section 9(2) of the Act;

(e)      if the employer party is liable to pay a skills development levy, the employer party is classified within the jurisdiction of the SETA in terms of section 5 of the Skills Development Levies Act;

(f)      the training provider party to the learnership agreement is accredited for the qualification associated with the learnership as contemplated in section 17(1)(c) of the Act;

(g)      the terms of the agreement comply with the Act, any other applicable law and the terms of the registered learnership;

(h)      the learnership agreement was concluded before the start of the learnership; and

(i)       in the case of a section 18(2) learner, the learner and the employer party have, subject to subregulation (8), entered into a contract of employment.

(4)      A SETA may only register a learnership agreement to which a group of employers is party if -

(a)      one of the employers is identified in the agreement as the lead employer;

(b)      the lead employer and the learner have signed the agreement; and

(c)      the lead employer undertakes -

(i)       to ensure compliance with the employer’s duties in terms of the agreement; and

(ii)      to ensure the implementation of the agreement at the workplace of the other employer parties to the agreement.

(5)      A SETA may only register a learnership agreement to which a group of training providers is party if -

(a)      one of the training providers is identified in the agreement as the lead training provider;

(b)      the lead training provider is accredited for the qualification associated with the learnership as contemplated in section 17(1)(c) of the Act;

(c)      the lead training provider undertakes -

(i)       to ensure compliance with the training provider’s duties in terms of the agreement;

(ii)      to ensure the proper assessment of the learner in accordance with the requirements of the relevant SETA; and

(iii)     to undertake the quality assurance of training and assessment at the sites of the training provider parties to the agreement.

(6)      The SETA must -

(a)      within 21 working days of receiving the learnership agreement, decide whether or not to register the learnership agreement;

(b)      if it decides to register the learnership agreement, within 7 working days of its decision -

(i)       record the name, the date of registration and the registration number of the learnership agreement; and

(ii)      send a copy of the learnership agreement to each of the parties to the agreement at the addresses stated in the agreement.

(c)      if it decides not to register the learnership agreement, within 7 working days of its decision notify the parties to the agreement accordingly in writing, providing reasons thereof.

(7)      Unless the parties to the contract agree otherwise, a contract of employment concluded with a section 18(2) learner only comes into effect once the SETA has registered a learnership agreement in respect of the learner.

6.       Commencing education and training under learnerships

The learner and training provider parties to a learnership agreement may not commence the education and training specified in the agreement until the SETA has registered the learnership agreement.

7.       Altering terms of learnership agreements

(1)      The parties to a learnership agreement registered with the relevant SETA may, by agreement and subject to the SETA’s approval, alter the terms of the said agreement.

(2)      A SETA may only register an alteration referred to in subregulation (1), if a copy of the learnership agreement, together with the alterations to the said agreement, signed by all the parties thereto, is submitted to the SETA.

8.       Substituting parties to learnership agreements

(1)      A SETA may approve the substitution of the employer or the training provider party to a learnership agreement in terms of section 17(5) of the Act if a written application, accompanied by an agreement setting out the terms of the substitution and signed by all the parties to the learnership agreement, is submitted to the SETA.

9.       Terminating learnership agreements

(1)      A SETA may approve the termination of a learnership agreement in terms of section 17(4)(b) of the Act if -

(a)      the employer and learner have agreed in writing to terminate the agreement;

(b)      the employer or the learner has requested, on good cause, to terminate the agreement and the other parties to the learnership agreement have had the opportunity to make representations as to why the agreement should not be terminated;

(c)      the learner has terminated the contract of employment with the employer; or

(d)      the training provider has requested on good cause to terminate the agreement and -

(i)       the other parties to the agreement have had the opportunity to make representations; and

(ii)      the SETA and the employer have been unable to arrange for a new training provider party to be substituted for the old training provider party in accordance with regulation 7(1).

(2)      An application to terminate a learnership agreement in terms of subregulation 1 must be submitted to the SETA in writing together with -

(a)      a copy of the relevant learnership agreement;

(b)      in the case of subregulation (1)(a), a written agreement signed by the employer and the learner setting out the reasons for the termination.

10.     Decision making by SETAs

Unless indicated otherwise in these Regulations, a SETA must make any decision required in terms of these Regulations within 30 working days of receiving the relevant documents.

11.     Record keeping by SETAs

(1)      Every SETA must keep an updated record of -

(a)      all learnership agreements registered by the SETA, including the title and registration number of the learnerships;

(b)      all grants paid by the SETA in respect of learnerships;

(c)      all alterations to the terms of learnership agreements referred to in regulation 7;

(d)      all substitutions of parties to learnership agreements in terms of regulation 8;

(e)      all learnership agreements successfully concluded, including the title and number of the learnerships;

(f)      all learnership agreements that the SETA did not register and the reasons for not registering the agreements; and

(g)      all learnership agreements terminated in terms of regulation 10, including the reasons for termination.

(2)      Records referred to in subregulation (1) may be kept in any form, provided that at least one set of the records is kept in hard copy.

12.     Employer agreements with ESDAs

(1)      An employer may conclude an agreement with an ESDA in terms of which the ESDA assumes responsibility for exercising some or all of the employer’s rights or performing some or all of the employer’s duties -

(a)      in terms of a learnership agreement with a section 18(1) learner;

(b)      in terms of a contract of employment or a learnership agreement with a section 18(2) learner.

(2)      An employer may conclude an agreement contemplated in subregulation (1) only with an ESDA registered by the Director-General in terms of these regulations.

(3)      An agreement contemplated in subregulation (1) -

(a)      may apply to one or more contracts of employment or learnership agreements;

(b)      may apply to a contract of employment or learnership agreement -

(i)       that has already been concluded only once the contract of employment or learnership agreement has been amended in writing and signed by the parties to the contract or agreement;

(ii)      to be concluded at a future date;

(c)      may not vary or transfer any rights or duties in terms of the contract of employment of a section 18(1) learner;

(d)      may not vary or transfer any rights or duties in terms of any statute, other than the Act, except to the extent permitted by such statute.[2]

(4)      If an agreement contemplated in subregulation (1) is concluded in respect of -

(a)      a section 18(1) learner, the ESDA may only exercise those rights and assume responsibility for those duties which are specifically identified in the learnership agreement as being transferred to the ESDA;

(b)      a section 18(2) learner, the ESDA is responsible for exercising the rights and performing the duties of the employer except those which are specifically identified in the learnership agreement or contract of employment as remaining within the responsibility of the employer.

(5)      An agreement contemplated in subregulation (1) must comply with the minimum terms and conditions contained in Annexure C.

13.     Applications for registration of ESDA

An application for registration of an ESDA must be submitted to the Director-General in the form set out in Annexure D.

14.     Requirements for registration of ESDAs

(1)      The Director-General may register an ESDA if the Director-General is satisfied that the applicant -

(a)      has the necessary infrastructure, resources and systems to provide quality services to learners and employers;

(b)      will comply with all statutory requirements relevant to its operations;

(c)      has effective financial management policies and procedures;

(d)      has effective administrative and records management policies and procedures;

(e)      has structures and processes for decision-making, accountability and control that will ensure good governance;

(f)      has the necessary skills to provide effective services as an ESDA;

(g)      will maintain a high standard of ethical conduct in providing services as an ESDA; and

(h)      will comply with any other reasonable requirements determined by the Director-General.

(2)      The Director-General may require an applicant to submit further information, particulars or documentation in support of any application for registration, within the time-period stipulated by the Director-General.

15.     Registration of ESDAs

(1)      If the Director-General decides to register an ESDA, the Director-General must -

(a)      enter the applicant’s name in the register of ESDAs; and

(b)      issue a certificate of registration to the ESDA stating the terms of registration.

(2)      The certificate of registration of an ESDA must be substantially in the form of Annexure E.

(3)      If the Director-General decides not to register an ESDA, the Director-General must advise the applicant in writing of the decision and provide the applicant with written reasons for the decision.

16.     Conditions for registration of ESDAs

The Director-General may impose any reasonable conditions on the registration of an ESDA and may on reasonable grounds, amend or cancel any condition imposed or impose new conditions.

17.     Deregistration of ESDAs

(1)      The Director-General may, on reasonable grounds, deregister an ESDA after -

(a)      notifying the ESDA in writing of the intention to cancel its registration and the reasons thereof;

(b)      giving the ESDA 30 days from the date of notice to make representations on why it should not be deregistered; and

(c)      considering any representations received in reaching a decision.

(2)      If the Director-General deregisters an ESDA, the Director-General must -

(a)      notify the ESDA of the decision in writing and provide reasons for the decision; and

(b)      remove the ESDA’s name from the register of ESDAs.

(3)      An ESDA which has been deregistered as contemplated in subsection (1) must return its certificate of registration to the Director-General within 30 days of receiving notice of deregistration.

(4)      In the event that an ESDA responsible for exercising the rights or performing the obligations of an employer in terms of any learnership agreement or contract of employment is deregistered or ceases to exist or operate for any reason, the responsibility for exercising or performing the rights and duties transferred to the ESDA in terms of an agreement contemplated by regulation 12 revert to the employer, unless the employer has concluded an agreement contemplated by regulation 12(1) with another ESDA.

18.     Referral of disputes

(1)      A party referring a dispute in terms of section 19(2) of the Act must submit a completed Form 7.11 published in terms of the Labour Relations Act 66 of 1995 to the Commission for Conciliation, Mediation and Arbitration.

(2)      The relevant provisions of Parts C and D of Chapter VII of the Labour Relations Act 66 of 1995, read with the changes required by the context, apply in respect of a dispute in terms of section 19 of the Act.

(3)      A learner referring a dispute contemplated by section 19(1) of the Act to the Commission for Conciliation, Mediation and Arbitration in terms of section 19(2)    of the Act complies with section 19(3) of the Act if -

(a)      in respect of a learnership agreement or a contract of employment in respect of which any of the employer’s rights or duties are exercised or performed by an ESDA, a copy of the referral is served on either the employer or the ESDA;

(b)      in respect of a learnership agreement to which a group of employers are a party, a copy of the referral is served on the lead employer.

19.     Short title

These regulations are to be known as the Learnership Regulations, 2007.

20.     Repeal of regulations

The Learnership Regulations, 2001 published in General Notice No. 330 in Government Gazette 22197 of 3 April 2001 are hereby repealed as a whole.

Annexure A

APPLICATION TO REGISTER A LEARNERSHIP

Annexure B

LEARNERSHIP AGREEMENT

Annexure C

AGREEMENT BETWEEN EMPLOYER AND ESDA

Annexure D

APPLICATION TO REGISTER AN ESDA

Annexure E

CERTIFICATE OF REGISTRATION OF ESDA

(Please note that the Annexures listed above will be provided upon request. Kindly refer to our website for our contact details.)