Commonwealth Numbered Regulations - Explanatory Statements

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WORKPLACE RELATIONS AMENDMENT REGULATIONS 1999 (NO. 2) 1999 NO. 43

Statutory Rules 1999 No. 43

(Issued by the authority of the Minister for Employment, Workplace Relations and Small Business)

Workplace Relations Act 1996

Workplace Relations Amendment Regulations 1999 (No. 2)

Authority

Section 359 of the Workplace Relations Act 1996 (the Act) provides that the Governor-General may make regulations, not inconsistent with this Act, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.

Subsection 359(2) of the Act gives the Governor-General power to make regulations in relation to certain subjects, including the fees to be charged in relation to proceedings under the Act.

Subregulation 30BD(1) of the Workplace Relations Regulations (the Regulations) currently provides that a fee of $50 is payable for lodgment of an application under section 107CE of the Act in respect of a termination of employment. (Such an application may be made on the ground that the termination was harsh, unjust or unreasonable, on the ground of an alleged contravention of a provision of Subdivision C of Division 3 of Part VIA of the Act, or on any combination of such grounds.) Subregulation 30BD(2) gives a Registrar the power to waive payment of the filing fee on the ground of serious hardship.

Subregulation 30BD(3) provides that the lodgment fee paid by an applicant under subregulation (1) is to be refunded to the applicant if he or she discontinues the application at least two days before the day on which the proceedings are first listed for attention by the Australian Industrial Relations Commission. Subregulation 30BD(3) refers to subregulation 30BD(1) '...as in force before 30 June 1998'.

Subregulation 30BD(4) currently provides that subregulations 30BD(1) and (2) cease to have effect on 31 December 1998.

Purpose

The purpose of the Workplace Relations Amendment Regulations is to substitute a new regulation 30DB in place of existing regulation 30DB to:

*       reimpose a $50 lodgment fee for applications in respect of termination of employment;

*       provide for a Registrar to waive the requirement for a lodgment fee where an applicant would suffer serious hardship;

*       provide for the refund of the fee in a case of early discontinuance of an application; and

*       establish a new sunset clause, expressed to operate until 31 December 1999.

Context

In its original form, subregulation 30BD(1) (introduced by Statutory Rules 1996 No. 307) set a lodgment fee of $50, which was introduced by the Government in order to discourage prospective applicants from lodging frivolous or vexatious applications in respect of termination of employment. Subregulation 30BD(2) conferred a discretion on a Registrar of the Australian Industrial Relations Commission to waive the requirement to pay the lodgment fee, where satisfied that payment would cause serious hardship to the applicant.

In September 1998, the Coalition released its workplace relations policy, More Jobs, Better Pay. Among other things, the policy contained a commitment to permanently implement a filing fee for lodgment of unfair dismissal claims, and to increase the level of the filing fee from $50 to $ 100.

Accordingly, the Workplace Relations Amendment Regulations 1998 (No. 3)

(Statutory Rules 1998 No. 373) were made on 17 December 1998. These regulations amended subregulation 30BD(1) to increase the amount of the lodgment fee from $50 to $100 with effect from 1 January 1999, and removed subregulation 30BD(4). On 16 February 1999, the regulations were disallowed by the Senate. The disallowance had the effect of reviving subregulation 30BD(4). Accordingly, subregulations 30BD(1) and (2) ceased to have effect on 31 December 1998, and there is no longer an obligation on an applicant to pay a lodgment fee when applying for a remedy in respect of termination of employment.

The Regulations will reinstate provisions of subregulations 30BD(1) and (2) and extend the sunset clause

Application

Item 1 of Schedule 1 substitutes a new regulation 30BD of the Workplace Relations Regulations 1996.

Details

The Regulations commence on gazettal.

ATTACHMENT

WORKPLACE RELATIONS AMENDMENT REGULATIONS 1999 (No. 2)

PROPOSED WORKPLACE RELATIONS AMENDMENT REGULATIONS 1999 (No. 2 )

Regulation 1

Regulation 1 sets out the name of the regulations.

Regulation 2

Regulation 2 provides for the commencement of regulations on gazettal.

Regulation 3

Regulation 3 is a formal provision, stating that the Workplace Relations Regulations 1996 are amended as provided for in Schedule 1.

Schedule 1 - Amendment

Item 1

Item 1 of Schedule 1 substitutes a new regulation 30BD for the existing regulation.

New subregulation 30BD(1) requires a lodgment fee of $50 to be paid where an application for a remedy in respect of termination of employment is filed under subsection 170CE(1), (2), (3) or (4) of the Workplace Relations Act 1996

New subregulation 30BD(2) gives a Registrar of the Australian Industrial Relations Commission the discretion to waive the requirement to pay the $50 lodgment fee on the grounds of serious hardship.

New subregulation 30BD(3) provides for the refund of the lodgment fee where an employee discontinues his or her application at least two days before the day on which the proceedings are first listed for attention by the Australian Industrial Relations Commission.

Item 1 also inserts a sunset clause on the operation of new subregulations 30BD(1) and (2). New subregulation 30BD(4) provides that subregulations 30BD(1) and (2) would cease to have effect on 31 December 1999.

A lodgment fee paid before 31 December 1999 would be able to be refunded under new subregulation 30BD(3) even if the application was discontinued after that date.