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LONG SERVICE LEAVE (COMMONWEALTH EMPLOYEES) AMENDMENT (RECOGNISING TRANSFERRING EMPLOYEES) REGULATIONS 2023 (F2023L00834)

EXPLANATORY MEMORANDUM

Minute No.    206      of 2023 - Minister for the Public Service

Subject -              Long Service Leave (Commonwealth Employees) Act 1976

Long Service Leave (Commonwealth Employees) Amendment (Recognising Transferring Employees) Regulations 2023

The Long Service Leave (Commonwealth Employees) Act 1976 (the Act) makes provision for long service leave entitlements for Commonwealth employees and certain other persons. The Act provides for persons employed in Government Service to be granted long service leave or a payment in lieu on separation where the period of service of the person is at least 10 years.

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

Subsection 7(2) of the Act provides that the regulations may provide that previous employment of an employee in the service of a person, authority, institution or body (including a company), whether incorporated or not, that is referred to in the regulations shall be taken into account for the purposes of section 11 as if it had been employment in Government Service.

The Long Service Leave (Commonwealth Employees) Amendment (Recognising Transferring Employees) Regulations 2023 (the proposed Regulations) would prescribe Creative Partnerships Australia Ltd (Creative Partnerships) as a recognised previous employer for staff who transfer to the Australia Council on 1 July 2023.

The purpose of the proposed Regulations is to avoid all doubt regarding the recognition of prior service of employees of Creative Partnerships who are transferring to the Australia Council as a result of the Australia Council Amendment (Creative Australia) Act 2023 (Creative Australia Act). These employees would have their prior employment with Creative Partnerships recognised as prior service within the meaning of section 11 of the Act.

The proposed Regulations would add a new item 37A to the table at Schedule 2 to the Long Service Leave (Commonwealth Employees) Regulation 2016 specifying the circumstances of employment with Creative Partnerships as the employment of a person who is taken, under item 10 of Schedule 2 to the Australian Council Amendment (Creative Australia) Act 2023 to have been employed by the Australia Council at the start of 1 July 2023. It does not impact the effect or limit the operation of the general application of transitional provisions within the Creative Australia Act.

On 23 March 2023, the Parliament passed the Australian Council Amendment (Creative Australia) Act 2023 to give effect to elements of the National Cultural Policy.

The amendment includes deregistering Creative Partnerships Australia under the Corporations Act 2001 and transferring the functions and assets of Creative Partnerships Australia to the Australia Council on 1 July 2023.

The Australia Council Amendment (Creative Australia) Act 2023 provides a transitional provision for employees transferring from Creative Partnerships Australia to ensure that their prior service is recognised as continuous with their ongoing service at the Australia Council on 1 July 2023.

The Act specifies no conditions that need to be satisfied before the power to make the proposed regulations may be exercised.

The proposed Regulation would be a legislative instrument for the purposes of the Legislation Act 2003.

The proposed Regulation would commence operation the later of:

a)      the start of the day after the instrument is registered; and

b)      immediately after the commencement of Schedule 1 to the Australia Council Amendment (Creative Australia) Act 2023.

Details of the proposed Regulation are set out in the Attachment.

The Minute recommends that the Regulation be made in the form proposed.

Authority:  Section 26 of the

Long Service Leave (Commonwealth Employees) Act 1976

ATTACHMENT

Details of the proposed Long Service Leave (Commonwealth Employees) Amendment (Recognising Transferring Employees) Regulations 2023

Section 1 - Name

This section provides that the name of the instrument is the Long Service Leave (Commonwealth Employees) Amendment (Recognising Transferring Employees) Regulations 2023.

Section 2 - Commencement

This section provides that the Regulations would commence the later of:

a)      the start of the day after the instrument is registered; and

b)      immediately after the commencement of Schedule 1 to the Australia Council Amendment (Creative Australia) Act 2023.

Section 3 - Authority

This section provides the authority under which the instrument is made (being the Long Service Leave (Commonwealth Employees) Act 1976).

Section 4 - Schedules

This section provides that each instrument specified in the Schedule is amended or repealed as set out in the applicable item in the Schedule concerned, and that any other item in a Schedule to the instrument has effect according to its terms.

Schedule 1 - Amendments

This Schedule provides for the Long Service Leave (Commonwealth Employees) Regulation 2016 to be amended.

Item 1 - This item inserts a new table item at clause 1 of Schedule 2 to the Long Service Leave (Commonwealth Employees) Regulation 2016. The item specifies the employment of a person who is taken, under item 10 of Schedule 2 to the Australia Council Amendment (Creative Australia) Act 2023, to have been employed by the Australia Council at the start of 1 July 2023. The previous employment is specified to be with Creative Partnerships Australia Ltd (Creative Partnerships).

The effect of the new item is to make clear that the prior employment of the transferring employees with Creative Partnerships Australia will be considered within the meaning of section 11 of the Long Service Leave (Commonwealth Employees) Act 1976 as if it was Government Service.