Commonwealth Numbered Regulations - Explanatory Statements

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INDUSTRIAL RELATIONS REGULATIONS (AMENDMENT) 1994 NO. 79

EXPLANATORY STATEMENT

Statutory Rules 1994 No. 79

(Issued by the Authority of the Minister for Industrial Relations)

Industrial Relations Act 1988

Industrial Relations Regulations (Amendment)

Section 359 of the Industrial Relations Act 1988 (the IR Act) provides that the GovernorGeneral may make regulations for the purposes of the IR Act. Section 4 of the Acts Interpretation Act 1901 has the effect that regulations may be made before an amending Act comes into operation, as if it had come into operation, provided that the regulations commence not earlier than the commencement of the relevant provisions of the amending Act.

These Regulations give effect to various matters which are necessary or convenient to be prescribed to give effect to provisions inserted into the IR Act by the Industrial Relations Reform Act 1993 (the Reform Act). In summary, the Regulations:

       prescribe matters relating to the operation of Division 3 of Part VIA of the Act, which deals with the termination of employment at the initiative of the employer, consistent with Australia's obligations under International Labour Organisation Convention 158, Termination of Employment, 1982 (the Termination of Employment Convention), specifically:

-       categories of employees to whom various termination of employment provisions do not apply, pursuant to section 170CC of the IR Act;

-       matters to be disregarded in determining an employee's period of continuous service for the purpose of establishing the period of notice of termination, or compensation in lieu of notice, required under section 170DB of the IR Act; and

-       circumstances in which an absence is not to be taken as a temporary absence for the purposes of paragraph 170DF(1) (a) of the IR Act;

       make provision for a minimum entitlement to adoption leave pursuant to section 170KC of the IR Act, which allows regulations to be made to give effect to Australia's international obligations in this area:

-       the regulations are closely modelled on the substantive parental leave provisions which are set out in Schedule 14 to the IR Act; and prescribe the purposes for which employees' continuity of service is to be taken not to have been broken by a lock out by their employer during the sanction free bargaining period.

The Regulations also effect other minor technical amendments which it is convenient to make at this time.

Details of the Regulations are attached.

The Regulations commence on 30 March 1994.

ATTACHMENT

DETAILS OF THE INDUSTRIAL RELATIONS REGULATIONS (AMENDMENT)

Regulation 1: Commencement

This regulation provides commencement dates for the regulations.

In subregulations 1.1, 1.2 and 1.3, the commencement dates of regulations 7, 4, 8 and 12, and 3, 9, 10 and 11, respectively, are linked to the dates of commencement of the sections of the Industrial Relations Reform Act 1993 (the Reform Act) which insert sections of the Industrial Relations Act 1988 (the IR Act) which are given effect to by the regulations. In each case, the date of commencement will be 30 March 1994.

The remaining regulations (regulation 1 itself, and regulations 2, 5 and 6) commence on Gazettal.

Regulation 2: Amendment

This is a formal provision, providing that the regulations amend the Industrial Relations Regulations (the Regulations).

Regulation 3: Regulation 7 (Representation of employing authorities before the Commission or Court)

Regulation 7 currently makes provision for the representation of public sector employing authorities in proceedings before the Industrial Division of the Federal Court and before the Australian Industrial Relations Commission (the Commission). The amendment allows this type of representation before the Industrial Relations Court.

Regulation 4: Regulation 14A (Certification of agreements)

Regulation 14A sets out the documents which parties applying for certification of an agreement under Division 3A of Part VI of the Industrial Relations Act 1988 (the IR Act) are required to provide to the Commission. The regulation repeals regulation 14A in line with the repeal of Division 3A of Part VI of the IR Act which is effected by the Reform Act.

Regulation 5: Regulation 25 (Manner of summoning or notifying party -paragraphs 149(1)(b) and (c) of the Act)

This is a minor technical amendment which reflects a renumbering of section 149 of the ]R Act. The amendment replaces 'paragraph 149(b)' and 'paragraph 149(c)' with 'paragraph 149(1)(b)' and 'paragraph 149(1)(c)' respectively.

Regulation 6: Regulation 26 (Prescribed time - paragraph 149(1)(c) of the Act)

This is a minor technical amendment which reflects the renumbering of a provision in the IR Act. The amendment replaces 'paragraph 149(c) 'with 'paragraph 149(1)(c)'.

Regulation 7: New Part 5A

Subregulation 7.1 inserts Part 5A, 'Minimum Entitlements of Employee', into the Regulations. This Part deals with matters arising in relation to minimum entitlements of employment. The Part comprises two Divisions:

       Division 1 - Termination of Employment;

       Division 2 - Adoption Leave.

Division 1 - Termination of Employment

Division 1 deals with:

       the exclusion of classes of employees from various provisions concerning termination of employment;

       continuity of service for the purpose of providing notice or compensation in lieu of notice; and

       guidance on the meaning of a temporary absence.

Regulation 30k Division 1

Subregulation 30A(1) introduces a definition of 'authorised leave' which is to be used in Division 1 of Part 5A of the Regulations.

'Authorised leave' is defined as leave authorised:

       by an employer;

       by an award or order made by a tribunal with the power to fix wages and other terms and conditions of employment, or an agreement certified or approved by such a tribunal;

       by an employee's contract of employment; or

       by an applicable law of the Commonwealth, a State or a Territory.

Subregulation 30A(2) provides that an expression used in this Division has the same meaning as in International Labour Organisation Convention 158, Termination of Employment, 1982 (the Termination of Employment Convention). The effect of this provision in relation to regulation 30B is explained below.

Regulation 30B: Employees excluded from requirements for termination of employment

This regulation sets out the categories of employees who are excluded from the operation of various provisions of the IR Act concerning termination of employment.

This regulation is for the purposes of section 170CC of the IR Act, which allows for the exclusion of the categories of employees set out in paragraph 2 of Article 2 of the Termination of Employment Convention. The excluded categories are:

(a)       employees engaged under a contract of employment for a specified period

of time (subject to subregulation (2));

(b)       employees engaged under a contract of employment for a specified task;

(c)       employees serving a period of probation or a qualifying period of employment, provided that the period, or the maximum period, is determined in advance and is of reasonable duration;

(d)       casual employees engaged for a short period (within the meaning of subregulation (3)).

It should be noted that the inclusion of paragraphs (a), (b) and (d) is not intended to be taken to raise the implication that, if these categories had not been excluded, such employees would have been covered by the termination provisions on the expiry of any contract of employment. The protection which is provided for in the IR Act relates only to termination at the initiative of the employer, not to the expiry of contracts at law.

One effect of subregulation 30A(2) (which provides that an expression used in this Division has the same meaning as in the Termination of Employment Convention) is that the phrase 'contract of employment' in regulation 30B has the same broad meaning that it has in the Convention. In particular, it includes the engagement of employees under statutory powers. Therefore, employees engaged under a statutory power for a specified period of time (or in any of the circumstances set out in this regulation) are excluded from the relevant provisions of the IR Act.

Subregulation 30B(2) provides that exclusion does not apply if a main purpose of the contract of employment for a specified period is to avoid the obligations in relation to termination of employment contained in the IR Act. This safeguard is consistent with paragraph 3 of Article 2 of the Termination of Employment Convention, as required by section 170CC of the IR Act.

Subregulation (3) provides that a casual employee is taken to be engaged for a short period unless having been engaged on a regular and systematic basis over a period of at least 6 months, and the employee has a reasonable expectation of continuing employment (or would have had such an expectation, but for a decision to terminate the employment).

Subregulation (4) provides that a casual employee who satisfies the two tests set out in subregulation (3), and is thus not a "casual employee engaged for a short period", is exempt from a more limited range of provisions. These employees have the protection of the provisions of the IR Act relating to unfair dismissal (although only in relation to termination, rather than mere expiry and non-renewal of a contract). They are not covered by provisions relating to notice periods before termination, or provisions relating to terminations of 15 or more employees for economic, technological, structural or similar reasons.

Regulation 30C. Whether period of service continuous - matters to be disregarded

Section 170DB of the IR Act provides an employee with the right to be given notice, or compensation in lieu of notice, where the employee's employment is terminated and there is no serious misconduct. The period of notice depends on the employee's length of service.

Subsection 170DB(3) of the IR Act allows the regulations to set out matters that may be disregarded in ascertaining the length of the employee's service.

Subregulation (1) provides that the following matters should be disregarded:

(a)       any suspension, stand down or other interruption, or termination, by the employer for the purpose of avoiding obligations under section 170DB of the IR Act;

(b)       any absence on authorised leave (as defined in regulation 30A);

(c)       absence due to illness of, or an accident to, the employee (subject to subregulation (3));

(d)       absence with reasonable cause (subject to subregulation (4));

(e)       absence due to concerted or collective industrial action (subject to subregulation (5));

(f)       any other absence from work to which subregulation (6) does not apply.

Under subregulation (2), paragraph (1)(c) does not apply unless:

       where the provisions of an award or agreement require notification of, and substantiation of the reason for, an absence from work - the employee has complied with the provisions; or

       in any other case - the employee notifies his or her employer of his or her absence and inability to attend for work, whether the absence is due to illness, injury or accident, and the likely duration of the absence:

       - this notification must be within 24 hours, or such longer period as is reasonable in the circumstances.

Under subregulation (3), paragraph (1)(d) does not apply unless:

       where the provisions of an award or agreement require notification of, and substantiation of the reason for, an absence from work - the employee has complied with the provisions; or

       in any other case - the employee notifies his or her employer of his or her absence and inability to attend for work and the likely duration of the absence

-       this notification must be within 24 hours, or such longer period as is reasonable in the circumstances.

Under subregulation (4), paragraph (1)(e) does not apply to an absence if the Commission or a State industrial authority has determined that the absence is to be taken as breaking the employee's continuity of service for the purposes of entitlement to notice or compensation in lieu of notice.

Subregulation (5) allows an employer to give notice in writing to an employee that an absence, other than an absence specifically referred to in paragraphs (1)(a) (e), will be taken as breaking continuity of service. Unless such a notice is given, such an absence is not taken to break continuity of service.

This notice for the purposes of subregulation (5) is required to accord with subregulation (6). Subregulation (6) requires the notice to be delivered to the employee personally, or posted to the employee's last known address, during, or within 14 days after, the period of absence.

Such a notice may be withdrawn by the employer, in which case it is taken never to have been given (subregulation (7)).

Regulation 30D: Termination on the grounds of temporary absence from work

Paragraph 170DF(1)(a) of the IR Act proscribes termination on the basis of 'temporary absence from work because of illness or injury'. Regulation 30D sets out circumstances in which an absence is not to be taken as a temporary absence for the purposes of that paragraph.

As set out in subregulation 30D(1), the purpose of the regulation is to clarity the meaning of temporary absence, consistently with paragraph 2 of Article 6 of the Termination of Employment Convention and section 170CB of the IR Act.

Subregulation (2) provides that an absence from work because of illness or injury is taken to be a temporary absence if the employee is on authorised leave (as defined in regulation 30A).

Subregulation (3) provides that, subject to subregulation (8), where the provisions of an award or agreement require notification of, and substantiation of the reason for, an absence from work, an absence because of illness or injury is taken to be a temporary absence, if the employee has complied with those provisions.

Subregulation (4) provides that, subject to subregulation (8), where there are no provisions of an award or agreement of the type described in subregulation (3), an absence because of illness or injury is taken to be temporary if the employee complies with the notice and substantiation requirements set out in subregulation (5) and, where applicable, subregulation (7).

Under subregulation (5), the employee is required to obtain a medical certificate from a medical practitioner stating that the employee is unable to work during the period of absence, and provide a copy of the certificate to the employer, together with information on the likely duration of the absence.

Under subregulation (6), if a medical certificate does not state that at the time and date of the certificate the employee's absence was or is expected to be temporary, the employer may request another certificate to this effect. An employee is required to comply with such a request unless the request is unreasonable in the circumstances (subregulation (7)).

Subregulation (8) provides that an absence is not to be considered temporary, notwithstanding the provisions of regulation 30D:

       in the case of an absence where there are award provisions on notification of, and substantiation of the reason for, an absence - if the employee fails to comply with those provisions;

       in the case of an absence where there are no such award provisions - if the employee fails to provide medical certification as required under subregulations (5) or (7); and

       in any case, other than an absence on authorised leave - if the duration of the illness or injury is such that it would not be harsh, unjust or unreasonable in the circumstances to terminate the employee's employment.

Subregulation (9) defines 'medical practitioner' for the purpose of this regulation.

Division 2 - Adoption Leave

Division 2 of Part 5A of the regulations sets out an employee's minimum entitlements in relation to adoption leave. These regulations are closely modelled on the substantive parental leave provisions which are set out in Schedule 14 inserted into the IR Act by the Reform Act.

Regulation 30E: Purpose of Division

Division 2 gives effect to section 170KC of the IR Act, which provides that regulations may be made providing for entitlements to unpaid adoption leave in order to give effect to international obligations.

Regulation 30F: Basic Principles

Regulation 30F sets out general principles relating to adoption leave under these regulations. These are:

       where a child under 5 years is placed with an employee for adoption, the employee and his or her spouse are entitled to a combined total of 52 weeks unpaid adoption leave to care for the child (subregulation (1));

       the 52 week entitlement is reduced by other adoption leave entitlements available to the employee, for example under an award or a State law (subregulation (2));

       requirements relating to length of service, notice periods, and information and documentation must be satisfied (subregulation (3));

       the employee and his or her spouse must take adoption leave at different times, with the exception of a three week period at the time of placement of the child (subregulation (4));

       other forms of leave (for example, annual leave) may be taken in conjunction with adoption leave, but this reduces the amount of adoption leave that may be taken (subregulation (5));

       adoption leave is able to be varied or cancelled in certain circumstances (subregulation (6));

       an employee taking adoption leave is usually entitled to return to the position they held prior to taking leave (subregulation (7));

       adoption leave does not break continuity of service (subregulation (8));

       the entitlements which are provided by this Division are minimum entitlements, which supplement, not override, other entitlements (subregulation (9)).

Regulation 30G: Definitions

This regulation provides definitions of relevant terms. The terms are explained below where necessary as they are used.

Regulation 30H: Entitlement to adoption leave

Regulation 30H establishes an employee's entitlement to adoption leave where a child is placed with the employee for the purpose of adoption (called 'placement').

Subregulation (1) provides that an employee is entitled to:

       up to three weeks unpaid leave (called 'Division 2 short adoption leave') to enable the employee, or the employee and the ]R Act spouse, to care for the child; and

       an unbroken period of up to 52 weeks unpaid leave (called 'Division 2 long adoption leave') in order to be the child's primary care giver.

Under subregulation (2), an employer is required to grant adoption leave under the regulations, provided that the following conditions are met:

(a)       the child is to be, or has been, placed with the employee for adoption;

(b)       as a result of the placement the employee is to provide, or provides, care for the child;

(c)       the child is at the date of placement, or was at the date of placement (as the case may be) under the age of 5 years;

(d)       the child is not a step-child of the employee or his or her spouse;

(e)       the child has not lived with the employee for a continuous period of 6 months or more;

(f)       the employee has completed, or is reasonably likely to have completed, 12 months continuous service with the employer as at the date of placement;

(g)       the leave complies with the limitations set out in regulation 30J (explained below);

(h)       the employee complies with the regulations concerning notice, application and documentation of the leave.

Regulation 30J: Maximum period of long adoption leave

Regulation 30J provides that the duration of long adoption leave under these regulations is 52 weeks, less:

       the total period of short adoption leave which the employee has applied for;

       any period of annual leave or long service leave an employee has applied to take instead of, or in conjunction with, long adoption leave; and

       any period of adoption leave or associated leave taken by the employee's spouse.

Regulation 30K: Limitations on the taking of adoption leave

Regulation 30K sets out limitations on the taking of adoption leave.

Under subregulation (1), a period of Division 2 short adoption leave is required to begin on the day of placement.

Subregulation (2) requires that Division 2 long adoption leave must:

       begin on the later of the day specified in the employee's application for the leave, or the date of the placement of the child; and

       not extend beyond the first anniversary of the date of placement of the child.

Under subregulation (3) a period of Division 2 long adoption leave taken by an employee and an employee's spouse must not overlap.

A period of long or short adoption leave is generally required to be a continuous period equal to the shorter of the period applied for or the period of entitlement (subregulation (4)).

Regulation 30L: Entitlement affected by other adoption leave available to employee

Regulation 30L requires an employee to take any period of adoption leave which is available from another source before taking adoption leave under these regulations. This is because the regulations are not intended to override any other entitlement to adoption leave under awards or State laws.

Subregulation (1) states that regulation 30L applies where an employee could have applied for adoption leave from another source such as an award or State law, and access to such leave would have been a legally enforceable right.

The leave described in subregulation (1) is referred to as ´the period of alternative leave' (subregulation (2)).

Under subregulation (3) the period of adoption leave available under these regulations is called the 'unadjusted period of adoption leave'.

Subregulation (4) provides that if the period of alternative leave is longer than, or equal to, the unadjusted period of adoption leave, the employer must not grant adoption leave under these regulations in respect of the placement.

Subregulation (5) provides that if the period of alternative leave is less than the 52 weeks of adoption leave available under these regulations, the employer must grant the difference between the alternative entitlement and the 52 weeks. in this situation the leave must be granted immediately after the period of alternative leave (if granted), and must in other respects comply with the regulations.

A note at the end of regulation 30L explains that there is an assumption that both periods of leave are applied for at the same time so that the employer is able to consider granting a composite period of leave.

Regulation 30M: Employee to give notice of adoption leave

This regulation sets out the notice requirements which apply in relation to adoption leave under these regulations.

Under subregulation (1), an employee who has been given notice of a placement and who intends to apply for Division 2 adoption leave is required to give notice to the employer.

An employee must:

       as soon as practicable after receiving the notice of placement, give notice in writing to his or her employer of the employee's intention to apply for adoption leave (subregulation (2));

       within 2 months after giving such notice, give notice in writing to his or her employer of the period or periods of adoption leave that he or she proposes to take (subregulation (3)); and

       as soon as practicable after the employee is given notice of the date of placement, give notice in writing to his or her employer of that date (subregulation (4)).

Regulation 30N: Application for adoption leave

Regulation 30N sets out the procedure that is required to be followed in applying for Division 2 adoption leave. Subregulation (1) requires an employee to apply in writing for adoption leave.

Under subregulation (2), the application must specify the first and last days of the period or periods of leave.

The employee is required to submit the application at least 14 days prior to the date of placement in the case of short adoption leave, and at least 10 weeks prior to the first day of the leave in the case of long adoption leave (subregulation (3)).

There is an exception to subregulation (3) if, because of the date of placement required by the adoption agency, the employee is unable to comply with the time requirements. In this case an employee is required to submit an application as soon as practicable before the date of placement (subregulations (4) and (5)).

Regulation 30P: Documents to be given to employer before employee takes leave

Under regulation 30P, the employee is required to provide certain documents to his or her employer before taking adoption leave.

Subregulation (1) provides the employee must give to the employer:

(a)       a statement from the adoption agency of the date of the placement of the child; and

(b)        a statutory declaration, in accordance with subregulation (3).

Subregulation (2) requires the documentation to be provided before the first period of leave if the employee applies for both short and long adoption leave.

Under subregulation (3), the statutory declaration required under paragraph (1)(b) must:

(a)       state that the employee proposes to take short and/or long adoption leave

(as the case may be);

(b)       state that the child

-       was, or will be, under the age of 5 years at the date of placement,

-       is not a child or step-child of the employee or his or her spouse, and

-       has not, or will not have, as at the date of placement, lived with the employee for a continuous period of 6 months or more;

(c)       specify any adoption leave, or other leave taken in conjunction with or instead of adoption leave, that the employee's spouse has applied for, or intends to apply for; and

(d)       state that the employee:

-       is the primary care giver throughout any period of long adoption leave; and

-       will not engage in any conduct inconsistent with his or her contract of employment.

Regulation 30Q: Taking annual leave or long service leave Instead of, or in conjunction with, adoption leave

Regulation 30Q provides that where an employee applies for annual leave or long service leave instead of, or in conjunction with, Division 2 adoption leave, the employer must grant the leave if:

       the employer would have been obliged to grant the leave; or

       if the total of adoption leave and other leave taken in conjunction with the adoption leave by the employee and the employee's spouse does not exceed 52 weeks.

Regulation 30R: Extension of adoption leave

This regulation allows an employee to apply for one extension of long adoption leave.

Subregulation (2) requires the employer to grant the application if appropriate notice is given and the total of relevant leave granted will not exceed 52 weeks.

Any further extension of adoption leave is by-agreement between the employer and employee (subregulation (3)).

Regulation 30S: Shortening of adoption leave

Regulation 30S provides for the shortening of a period of adoption leave with the employer's consent.

Regulation 30T: Effect on adoption leave of failure to complete 12 months continuous service

Regulation 30T allows the employer to cancel adoption leave which was granted on the expectation that 12 months continuous service would be completed on a particular day, if the employee does not complete that service.

Regulation 30U: Effect on adoption leave If child is of 5 years of age or more

Under this regulation the employer is permitted to cancel adoption leave granted if the child is over 5 years of age on the day of placement.

Regulation 30V: Effect on adoption leave if child has lived continuously with employee

Regulation 30V provides that the employer may cancel adoption leave granted if the child has lived with the employee for a continuous period of 6 months or more.

Regulation 30W: Effect on adoption leave if child is the child of the employee or employee's spouse

The regulation allows the employer to cancel adoption leave that has been granted if the child in respect of whom the leave has been granted is the child or step-child of the employee, or the employee's spouse.

Regulation 30X: Effect on adoption leave If placement does not proceed

This regulation is applicable if placement does not proceed, or proceeds but does not continue.

The employer may cancel adoption before it begins (subregulation (2)).

Under subregulations (4) and (5), where the adoption leave has begun it may be cancelled by the provision of 4 weeks notice by either party.

If the employee returns to work, the employer is required to cancel the rest of the adoption leave (subregulation (6)).

Regulation 30Y: Effect on adoption leave If employee ceases to be the primary care giver

Regulation 30Y allows the employer to cancel long adoption leave if, during a substantial period of the leave, the employee is not the child's primary care giver and it is reasonable to expect that the employee will not within a reasonable period again become the child's primary care giver.

in such a case the employer may notify the employee in writing that he or she must return to work on a specified day that is not less than 4 weeks after the notice is given (subregulation (2)).

If the employee returns to work, the employer is required to cancel the rest of the adoption leave (subregulation (3)).

Regulation 30Z: Return to work after adoption leave

This regulation set out what is to happen when an employee returns to work after adoption leave. The employer is to be required to employ the employee in the position he or she held immediately prior to the adoption leave (subregulation (2)).

Subregulation (3) provides that where the employee's previous position no longer exists but the employee is qualified for, and able to perform the duties of, other positions, the employer must employ the employee in whichever of those positions is nearest in status and remuneration to his or her previous position.

Regulation 30ZA: Employee's duty if excessive leave granted or if periods of long adoption leave overlap

This regulation sets out an employee's duty where excessive leave is granted or if periods of long adoption leave overlap.

Subregulation (1) sets out what amounts to excessive leave. Leave is excessive where the total of the following exceeds 52 weeks:

-       each period of adoption leave granted to the employee;

-       each period of annual or long service leave granted by the employer instead of, or in conjunction with, adoption leave;

-       each period of adoption leave granted to the employee's spouse;

-       each period of annual or long service leave granted by the employer of the employee's spouse instead of, or in conjunction with, adoption leave.

Under subregulation (2), regulation 30ZA also applies if the adoption leave (other than short adoption leave), annual leave or long service leave granted to the employee in relation to the placement of a child, overlaps with any such leave granted to the employee's spouse.

Under subregulation (3), the duty of the employee is to give the employer notice in writing stating the total of any excess leave or the period of any overlap.

The notice should also set out how the employee suggests the employer vary or cancel the leave so as to remove the excess or overlap, and, where this does not remove the whole excess or overlap, the suggestions the employee's spouse has made or intends to make in relation to the excess or overlap.

The variations or cancellations suggested must be such that, if they are all made, the excess or overlap would be removed (subregulation (4)).

Subregulation (5) provides that an employer may vary or cancel periods of leave as suggested in the notice, or as agreed with the employee or the employee's spouse (as the case may be).

Regulation 30ZB: Employer to warn replacement employee that employment is only temporary

Regulation 30ZB sets out an employer's obligations in relation to a temporary employee who replaces an employee on adoption leave.

An employer is required to inform a person employed to replace an employee on adoption leave or to replace a person temporarily replacing an employee on adoption leave, that the employment is to be temporary and of the rights of the employee on adoption leave.

Regulation 30ZC: Adoption leave and continuity of service

This regulation provides that a period of adoption leave does not break an employee's continuity of service. However, adoption leave is not to count as service except for the purpose of determining an entitlement to a later period of adoption leave or of parental leave under the IR Act, or as provided by a law of the Commonwealth or of a State or Territory, or in an award, order, agreement or instrument.

Regulation 30ZD: Effect of Division on other laws

Regulation 30ZD clarifies that Division 2 is to operate despite any State or Territory laws, or awards, orders, agreements or instruments, but that it is not intended to exclude or limit their operation in so far as they can operate concurrently with Division 2.

Regulation 8: New Part 5B

Subregulation 8.1 inserts Part 5B, 'Promoting Bargaining and Facilitating Agreements', into the Regulations.

Regulation 30ZE: Protected action - continuity of employment not affected

Subsection 170PG(6) of the IR Act provides that during a sanction free bargaining period, an employer may not lock out employees, unless their continuity of employment is not affected in relation to such purposes as are prescribed by ,regulations.

This regulation prescribes the purposes of the calculation of any benefit or entitlement arising from the employees' employment. Particular reference is made to superannuation entitlements, authorised leave and seniority for the purposes of remuneration and promotion.

Regulation 9: New Part 6A

This regulation inserts Part 6A, 'Compliance', after Part VI of the Regulations.

Regulation 32A: Recovery of small claims under award or order - maximum amount

Paragraph 179D(2)(a) of the IR Act provides that the maximum amount that may be awarded in a magistrate's court using the small claims procedure set out in section 179D of the IR Act is $5,000 or such higher amount as is prescribed. This regulation sets the maximum amount recoverable at $10,000. This is the amount which section 376 of the IR Act, inserted by the Reform Act, provides as the maximum amount for claims in respect of which the Rules of the Industrial Relations Court are able to delegate powers to Judicial Registrars (apart from claims relating to unlawful termination of employment).

Regulation 10: Schedule 1

This regulation amends Forms 4 and 11 in Schedule 1 to the Regulations to take account of the Industrial Relations Court of Australia established by section 361 of the IR Act. The amendment replaces the term 'Federal Court' with 'Industrial Relations Court'.

Regulation 11: Transitional provision - part-heard proceeding

This is a technical regulation. It allows the continued representation of public sector employing authorities in a part-heard proceeding which can be finalised in the Federal Court under the transitional provision in section 65 of the Reform Act, notwithstanding the amendments to be effected by regulation 10.

Regulation 12: Transitional provision - certified agreements

This is a technical regulation. Subparagraph 35(2) (c) (ii) of the Reform Act allows certain applications for certified agreements under Division 3A of Part VI of the IR Act to be dealt with as if that Division were not repealed by the Reform Act.

Regulation 12 allows Regulation 14A, which requires documentation and statutory declarations in relation to certified agreements, to continue to apply in relation to the applications to which subparagraph 35(2)(c)(ii) of the Reform Act applies, notwithstanding its omission by regulation 4.


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