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Suzanne Hattingh

Unpacking the latest Learnership Regulations

Mon, 12 Nov 2007 16:39

Suzanne Hattingh

This document describes the main points in the new Learnership Regulations, published in the Government Gazette, No. 30010 on 29th June 2007. These Regulations replace the previous Regulations dated 3 April 2001.

We will highlight the areas that impact specifically on employers, training providers and learners involved in the implementation of learnerships. (The Regulations can be accessed through the website, www.learningroadmap.co.za, under DOWNLOADS).

Important note: The Skills Development Act is currently being reviewed, and some of the anticipated changes will require amendments to these Learnership Regulations. Some of the proposed changes will see the training of apprenticeships being included in the Regulations in view of the importance of artisan development.

The proposed introduction of the Quality Assurance Council for Trades and Occupations (QCTO) will see this body taking over some of the quality assurance and accreditation functions of the Setas. However, most of the changes highlighted below are unlikely to be changed by the next version of these Regulations.

REGISTRATION OF THE LEARNERSHIP AND QUALIFICATION

Definition of a learnership

A learnership is defined as a learning programme which:

• consists of a structured learning component;

• includes practical work experience of a specified nature and duration;

• leads to a qualification registered by SAQA and related to an occupation; and

• is registered with the Director-General of the Department of Labour in the prescribed manner

*Note: This definition is essentially the same as the definition we have been using. However you will notice that far more emphasis is placed on the practical work experience. The new learnership registration documents will specify the ‘practical workplace experience activities’ that the learner will have to complete in the workplace, with the notional hours of that learning. (See the table in Appendix A, which is included in the Regulations.)

Amendments and deregistration of the qualification and learnership A new section provides for amendments and deregistration of learnerships and the qualification associated with the learnership (i.e. the qualification the learners will be awarded after successfully completing the learnership (sections 3 & 4 of the Regulations).

However, the amendments and deregistration will not affect learners who have completed or are still in the process of completing the previously registered learnership.

* Note: Before you embark on a learnership make sure that 1) the qualification is still registered, 2) the learnership is still registered, 3) that you have the latest versions of the qualification and learnership, and 4) find out if there are any plans to revise the qualification or learnership within the near future. Also make sure that the learning programme, learning materials – and particularly – the assessments you used previously still cover the requirements of the qualification, if it has been revised.

Learnership Registration Form (Annexure A of the Regulations)

The most important aspects to note are:

• The learnership review date will be specified.

• The form will indicate if this is a new learnership, or replacing an existing one.

• The ETQA accredited to quality assure the qualification associated with the learnership will be specified.

• The entry level requirements for the qualification will be described.

* Note: It is important to take this into consideration during learner selection as too many learners are selected who do not have the required learning in place to be able to cope with the level of complexity of learning in the qualification. This is one of the main reasons for the high drop-out rate.

• The occupation that the learnership relates to will be indicated, using the designation on the Organising Framework for Occupations.

* Note: This emphasises the key objective of learnerships – i.e. to build the competence required in specific occupations.

• The most significant change is the table in section 5 (reproduced in Appendix A).

* The percentage of learning at the training provider and the workplace is indicated.

* Note: There is a common misconception that the split should be 30% at the training provider and 70% at the workplace. Although the aim should be that the majority of learning should not happen in the classroom, some unit standards clearly require more theoretical learning, while others require almost a 50/50 split, and still others will require more workplace-based learning. Therefore, the specific outcomes will indicate the appropriate split between theoretical and workplace learning.

* The ‘specified practical workplace experience activities’ will be described for the all the specific outcomes in the qualification, together with the notional hours of learning for each activity.

* Note: This will clearly stipulate what the learner is required to do in the workplace, and these aspects should be clearly described in the learning programme and learner/ assessment guides. This will address many of the current problems, such as the uncertainty among employers regarding what learners should be doing as part of the workplace-learning component of the learnership, or learners being used as a source of ‘cheap labour’ in the workplace. Employers must take note of these specifications and ensure that the learners cover all these areas.

• The registration form also makes provision for learnerships that are based on ‘whole qualifications’, i.e. which are not based on unit standards. A template similar to the one in Appendix A is provided for this kind of learnership (section 6).

* Note: The lead provider and employer must ensure that they obtain the completed table in Appendix A as they will have to use it to plan the learnership implementation plan, the learning programme and the guideline documents for facilitators, learners, assessors and workplace coaches.

LEARNERSHIP AGREEMENTS

* Note: What this means is that the learnership agreement must be signed by the SETA to which the employer pays the skills levy. For example, if a construction company implements a learnership in accounting, the learnership will be registered by FASSET, the quality assurance will be performed by the ETQA of FASSET, but the learnership agreement will be signed by the Construction SETA. Because the employer’s levy has been received by CETA, it is preferable for CETA to pay the learnership grant and learner allowances. However, it is possible that FASSET could agree to fund the implementation from its discretionary grants.

• All section 18(2) learners must have entered into an employment contract with the employer, before signing the learnership agreement. This contract only comes into effect once the SETA has registered the learnership agreements.

• The Regulations again make provision for a lead employer and lead training provider in cases where more than one employer and/or provider are involved in implementing a learnership. However, additional requirements are (section 5):

* As previously, the lead employer undertakes to ensure compliance with the employer’s duties in the agreement, as well as (new requirement) ensuring the implementation of the agreement at the workplaces of the other employer parties to the agreement.

* As previously, the lead training provider undertakes to ensure compliance with the training provider’s duties in the agreement, but also (new requirements) must ensure the proper assessment of the learner in accordance with the requirements of the relevant SETA, and undertake the quality assurance of training and assessment at the sites of the training provider parties to the agreement.

• The lead training provider must be accredited for the qualification associated with the learnership (section 5(f).

* Note: This is to ensure that the lead training provider is accredited to offer the qualification associated with the learnership. Even though a training provider may be accredited by an ETQA, it still has to ensure that the specific qualification is covered within its scope of accreditation, and that this accreditation is confirmed by the ETQA responsible for quality assuring the qualification.

• The SETA must, within 28 working days of receiving the learnership agreement, send a copy of the signed agreement to each party to the agreement (or inform them if they are not going to register the agreement, and provide reasons).

* Note: It is advisable to keep copies of all the signed agreements before submitting them to the SETA in case they are misplaced or lost.

• The learners and training providers may not commence with education and training specified in the agreement until the SETA has registered the agreement.

Altering/terminating agreements or substituting parties to the agreement The requirements relating to these issues are much the same as in the previous Regulations, except that in future all parties to the original agreements must sign to indicate approval of any changes (sections 7 – 8).

Employer agreements with ESDAs

The Regulations provide details on the role of the Employment Skills Development Agencies (ESDAs) and how they can assist employers with the implementation of learnerships (sections 12 to 17).

* Note: ESDA’s were introduced by the Skills Development Act [section 17(7)] to perform the employer’s obligations and exercise the employer’s rights in respect of a learnership agreement, or, in respect of an employment contract in respect of an unemployed learner. ESDAs were mainly established to assist smaller employers who were interested in taking learners into a learnership, but who lacked the capacity and/or resources to perform all the duties required in terms of the learnership agreement.

• ESDA rights and duties: 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 duties in terms of the learnership agreement with a section 18(1) learner and/or in terms of a contract of employment or a learnership agreement with a section 18(2) learner.

* Note: The ESDA’s duties in respect of 18(2) learners could cover the learnership agreement and employment contract. This means that the ESDA can sign both the agreement and contract with the learners – and perform the duties of an employer in the learnership.

• The agreement between the ESDA and employer must specify exactly what the rights and duties of the ESDA will be in relation to the section 18(1) and 18(2) learners.

• Signed agreement: The Regulations include Annexure C: ‘Agreement between employer and ESDA’, which specifies what must be covered in the agreement. This includes a warranty regarding the standard of services to be provided by the ESDA, and its capacity and resources to comply with the duties it assumes in the learnership. Annexure C also makes provision for the amendment and termination if the agreement, and for arbitration of any dispute.

Learnership agreement form (Annexure B of the Regulations)

Part A to Annexure B: Terms and conditions of the agreement

• Legally binding document: As in the previous form, on signing the form the parties acknowledge that this is a legally binding document.

• Learner rights: New rights have been added to those in the previous form. The learner now also has the right to:

o Receive an induction to the learnership,

o Access to the required resources for the achievement of the specified outcomes for the structured learning component, as well as for the specified practical workplace experience activities,

o Be assessed and have access to the assessment results for the structured learning component, as well as the specified practical workplace experience activities,

o Receive a written statement of results within 21 working days of the final assessment,

* Note: This should be issued by the training provider, after the assessments have been moderated internally.

o If successful, be awarded a certificate of achievement for the qualifications within 45 days of the final assessment, and

 Note: This certificate must be issued by the ETQA responsible for quality assuring the qualification. The inclusion of this item is welcomed as there are many complaints about SETA delays in issuing certificates.

o Receive the agreed learner’s allowance (18(2) learners).

• Learner duties: The learner duties have not changed much, but include:

o Carry out all occupationally related work for the employer required for the practical workplace experience activities specified in the learnership; and

o Undertake all learning relating to the learnership conscientiously.

• Employer’s rights and duties:

o The employer’s rights have remained unchanged.

o There are important additions to the duties of employers, including: provide facilities and resources required for the workplace learning; provide learners with supervision, mentoring and coaching at work; provide the learner with appropriate education and training to competently perform the specified workplace experience activities required by the learnership; and submit records as required by the ETQA.

 Note: This section further indicates the tightening of the requirements relating to workplace learning.

• Training provider’s rights and duties:

o The rights have been reformulated to give the provider access to the learner’s portfolio of evidence and workplace learning related assessment.

 Note: The provider no longer has access to the learner’s books, learning material and place of work.

o The provider still has to provide the structured learning and learner support, and keep record of education and training provided, but the following new duties have been added: periodically discuss progress with the learner and the employer; and ensure that the assessments against the outcomes of the qualification is conducted at the end of the learnership.

• Suspension and termination of the learnership

o In addition to the existing requirements relating to the termination of the learnership agreement, the new Regulations include a provision for the suspension of the learnership agreement for a period agreed to by all parties. The application must be submitted to and approved by the SETA. All parties must take the appropriate steps to reactivate the learnership on expiry of the suspension period.

o The conditions for terminating the learnership are the same, with the addition that the learnership may be terminated if the learner successfully completed the final assessment and fulfilled all requirements associated with the specified workplace experience activities of the learnership.

• Managing disputes

o Provision is still made for disputes to be referred to the CCMA. An additional stipulation is that if there is a dispute regarding the quality of education and training provided by the training provider or regarding the quality of the learner’s learning performance, it may be referred to the ETQA accredited for the learnership qualification for resolution in accordance with the applicable policies and procedures of the ETQA.

Part B to Annexure B: Details of the Learnership and parties to the learnership agreement

• This section with the details of the learnership, the learner, training provider and employer is mostly unchanged.

• Lead training provider: The lead training provider must be accredited to offer the qualification associated with the learnership, and details of other training providers must be attached on a separate sheet.

 Note: The implication is that other training providers do not need to be accredited as the services they provide in the learnership will be quality assured by the lead training provider.

• A new requirement is that a copy of the learning programme outline and learnership implementation plan must be attached to the signed learnership agreements.

 Note: This means that before signing the agreement the learning programme (which specifies the structured learning component and work experience) must be developed and the employer and provider must together develop a learnership implementation plan for the duration of the learnership. The Regulations do not specify what should be in the plan, but it is likely that the SETAs will each develop requirements in this regard.

• Section to be completed by the learner: As previously, the learner is required to indicate if he/she has undertaken a learnership before.

 Note: This is important to address the problem of learnership-hopping by learners moving from one learnership to the next mainly for the learner allowance.

• Section to be completed by the employer: The employer is now required to indicate whether the entity is liable to pay the skills development levy.

• Section to be completed by other training providers and employers: Where there are more than one provider and/or employer involved in the learnership, their details must be provided. All providers are also required to indicate whether they are accredited and to provide the name of the ETQA, accreditation number and review date.

 Note: Clearly, the Regulations promote the use of accredited providers for all learnerships.

• ESDA details: In cases where the employer has signed a contract with an ESDA, the details of the ESDA must be provided, in addition to the list of the rights and duties of the employer that the ESDA will exercise as agreed with the employer. A copy of the agreement between the employer and the ESDA must be attached.

ANNEXURES ON ESDA AGREEMENT AND REGISTRATION

• Annexure C: Agreement between employer and ESDA: This stipulates the minimum terms and conditions that should be included in the agreement between these two parties.

• Annexure D: Application to register as an ESDA: This is the form to be used by an entity in applying to the Department of Labour to be registered as an ESDA, and requires:

o Details of the applicant

o Identification of the employment and skills development services to be provided

o Documents providing proof of the capacity to perform the ESDA role in terms of meeting statutory requirements, financial management, administration and records management, governance structures, skills of personnel, financial capacity, and a needs analysis and expected demand.

• Annexure E: Certificate of registration of ESDA: This is the certificate issued to registered ESDAs by the Department of Labour.