EXPLANATORY STATEMENT

 

Select Legislative Instrument 2010 No. 20

 

Issued by the authority of the Minister for Employment and Workplace Relations

 

Long Service Leave (Commonwealth Employees) Act 1976

 

Long Service Leave (Commonwealth Employees) Amendment Regulations
2010 (No. 1)

 

The Long Service Leave (Commonwealth Employees) Act 1976 (the Act) makes provision for long service leave in respect of employees of the Commonwealth.

 

Section 26 of the Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

Following the Australian Human Rights Commission’s report, Same-Sex: Same Entitlements and an audit of Commonwealth legislation, the Australian Government introduced legislative reforms to remove differential treatment of same-sex couples and their children.

 

These reforms were passed by Parliament in 2008 in the form of the Same Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 and the Same‑Sex Relationships (Equal Treatment in Commonwealth Laws ‑ Superannuation) Act 2008 (the same-sex legislation). These Acts:

• accord the same recognition to same‑sex de facto relationships and registered relationships as opposite‑sex de facto relationships;
• ensure that functional recognition is provided to the children of same‑sex relationships; and
• update outdated language and replace gender specific language with gender neutral language.

 

The purpose of these Regulations is to make the Long Service Leave (Commonwealth Employees) Regulations 1957 consistent with the same-sex legislation.

 

Details of the Regulations are set out in the Attachment.

 

Consultation in relation to these specific regulations was not undertaken as consultation on this issue was undertaken by the Australian Human Rights Commission as part of their reporting process and by the Australian Government as part of the legislative development process.

 

An assessment was made under the guidelines issued by the Office of Best Practice Regulation, which indicated that a Regulation Impact Statement was not required.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commence on the day after they are registered.

ATTACHMENT

 

Details of the Long Service Leave (Commonwealth Employees) Amendment Regulations 2010 (No. 1)

 

Regulation 1 – Name of Regulations

 

Regulation 1 provides that the title of the Regulations is the Long Service Leave (Commonwealth Employees) Amendment Regulations 2010 (No. 1).

 

Regulation 2 – Commencement

 

Regulation 2 provides for the Regulations to commence on they day after they are registered.

 

Regulation 3 - Amendment of Long Service Leave (Commonwealth Employees) Regulations 1957

 

Regulation 3 provides that the Long Service Leave (Commonwealth Employees) Regulations 1957 (the Principal Regulations) are to be amended as set out in Schedule 1.

 

Regulation 4 – Transitional

 

Regulation 4 clarifies that, despite these technical amendments to principle regulation 5 (which update its gender specific language), that regulation continues to have effect in relation to instruments affecting long service leave for seamen and maritime employees which were made before the commencement of these Regulations.

 

Schedule 1 Amendments

 

These amendments continue the process of removing differential treatment of

same-sex couples and their children from all Commonwealth laws. The project began with the enactment of the Same Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 and the Same‑Sex Relationships (Equal Treatment in Commonwealth Laws ‑ Superannuation) Act 2008 (the same-sex legislation).

 

These amendments amend the Long Service Leave (Commonwealth Employees) Regulations 1957 to ensure that they align with and are consistent with the same-sex legislation.

 

Item [1] – Subregulation 4D(2)

 

Regulation 4D provides that an allowance may be payable to a person who is required to perform duties in a particular region of Australia (the district allowance). Subregulation 4D(2) provides that this district allowance is payable only if:

·                    the person remains in the region during the period of his (or her) long service leave; or

·                    the person is married, and the person’s family remain in the region during his (or her) absence from the region.

Item 1 amends subregulation 4D(2) so that the reference to ‘married’ extends to a person in a ‘de facto relationship’ with another person as defined under the

Acts Interpretation Act 1901. Additionally, all references to the gender-specific term ‘his’ have been replaced with a gender neutral term.

 

 

Item [2] – After subregulation 4D(3)

 

Item 2 inserts:

·        the gender-neutral definition of ‘child’ from the Same Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008; and

·        the definition of ‘family’ from the Fair Work Act 2009 (taken from section 12 of the Act). This definition was chosen over those in the same sex legislation because it is descriptive but does not broaden the coverage of the Principal Regulations.

 

Item [3] – Subregulation 4DA(1)

 

Item 3 replaces references to ‘tradesman’ in subegulation 4DA(1) with a gender-neutral term ‘tradesperson’. This term is appropriate due to its common usage and the fact that it will be used to update the language of the Tradesmen’s Rights Regulation Act 1946.

 

Item [4] – Regulation 5

 

Regulation 5, which prescribes certain persons to be ‘seamen’ for the purposes of section 15 of the Act, contains references to many occupations which are gender specific. Item 4 replaces these occupations with prescribed classes of maritime employees expressed in gender-neutral terms and reordering the classes to increase readability. To ensure coverage by the regulation will remain unaltered, the updated occupations were verified against the Australia Bureau of Statistics publication ANZSCO - Australian and New Zealand Standard Classification of Occupations (1220.0 First Edition, Revision 1, updated 25 June 2009).

 

Item [5] – Further amendments

 

Item 5 replaces a number of other gender specific terms in the Act with the equivalent gender-neutral term.