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WORKPLACE RELATIONS AMENDMENT REGULATIONS 1999 (NO. 7) 1999 NO. 297

Statutory Rules 1999 No. 297

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

Workplace Relations Act 1996

Workplace Relations Amendment Regulations 1999 (No. 7)

Authority

Subsection 359(1) of the Workplace Relations Act 1996 (the WR Act) provides that the GovernorGeneral may make regulations prescribing matters required or permitted by the Act, or necessary or convenient to give effect to the Act.

Purpose

The purpose of the regulations is to amend the principal Regulations to change those provisions of regulations 30ZE and 30ZJ and Schedules 5 and 10 which govern the degree to which public service certified agreements (CAs) and Australian workplace agreements (AWAs) can displace Commonwealth legislation on conditions of employment. The amendments are required as a consequence of the Public Service Act 1999 (the 1999 Act) and the Parliamentary Service Act 1999 (the Parliamentary Service Act), to come into effect simultaneously with the commencement of the new legislation.

Context

In accordance with s. 170LZ and s. 170VR(4) of the WR Act, CAs and AWAs cannot displace conditions of employment specified under Commonwealth legislation, including regulations or other instruments, except as authorised by regulations made under the WR Act. Currently, regulation 30ZE (CAs) and regulation 30ZJ (AWAs) and Schedules 5 and 10 of the Regulations specify certain provisions under the Public Service Act 1922 (the 1922 Act) and its subordinate legislation which can be displaced by agency agreements.

With the repeal of the 1922 Act and coming into effect of the 1999 Act and a new Act to govern the Parliamentary Service, there is a need to amend these provisions.

The 1999 Act provides for a less prescriptive and more principles-based approach, and fully devolves responsibility for terms and conditions of employees to individual agencies. It is not necessary to enable agencies to override the 1999 Act or subordinate legislation made under that Act in CAs and AWAs to the same extent as previously; s.24(1) of the 1999 Act gives Agency Heads power to determine the remuneration and other terms and conditions of employment applying to an Australian Public Service (APS) employee or employees in an Agency. As stated in the Explanatory Memorandum to the Bill for the 1999 Act, it was proposed that, as was the case with s.82D and s.9(7A) Determinations under the 1922 Act, regulations be made under the WR Act to allow the making of later AWAs and CAs which are inconsistent with determinations made under s.24(1) of the 1999 Act. However, they will not allow the making of agreements that are inconsistent with a determination by the Public Service Minister under s.24(3) of the 1999 Act.

This approach is subject to one exception for APS employees. Under the regulations in relation to Machinery of Government (MoG) changes (contained in the Public Service Regulations 1999), Agency Heads will rely on the making of determinations under s.24 if they wish to maintain one or more of the existing terms and conditions of employment of an employee transferred into the agency which is not provided for in the receiving agency's CA. Thus the regulations are subject to the proviso that they do not allow an Agency Head to make a CA or AWA that would prevent that Agency Head from later making a determination under s.24(1) in relation to an APS employee who is moved into the Agency under s.72(1)(a) of the 1999 Act or a non-APS employee who is transferred into the Agency under s.72(1)(c).

This approach is consistent with the Government's policy, as provided in the Policy Parameters for Agreement Making in the APS (May 1999), which is directed at enabling MoG changes to be implemented as quickly and efficiently as possible to enable the business of Government to continue, without agencies needing to vary their agreements.

The Parliamentary Service Act separates the Parliamentary Service from the Australian Public Service. The Act is based on similar principles to the new Public Service legislation and has many similar provisions. Subsection 24(1) of the Parliamentary Service Act allows the Secretary of a Parliamentary Department to make determinations on the remuneration or conditions of employment of Parliamentary Service employees employed in that Department. There is a similar need to allow CAs and AWAs to override these determinations and hence the need to prescribe such determinations in regulations 30ZE and 30ZJ. Given the nature of the Parliamentary Service, there are no provisions for Machinery of Government changes. The equivalent to determinations issued by the Public Service Minister is determinations issued by the Presiding Officers under s.24(3) of the Parliamentary Service Act and, accordingly, the regulations do not allow for agreements that are inconsistent with a Presiding Officer determination.

Application

Items 101 and 102 of Schedule 1 allow a CA to displace an Agency Head determination made under s.24(1) of the Public Service Act 1999. Items 104 and 105 of Schedule 1 would allow an AWA to displace an Agency Head determination made under s.24(1) of that Act. In both cases there is an exception for determinations that implement Machinery of Government changes (which may not be so displaced).

Items 201 and 202 of Schedule 2 allow a CA to displace a determination made by a Secretary under s.24(1) of the Parliamentary Service Act. Items 204 and 205 of Schedule 2 allow an AWA to displace an Agency Head determination made under s.24(1) of that Act.

Details of the Regulations are in the attachment.

The Regulations commence at the same time as the Public Service Act 1999, except for Schedule 2, which commences at the same time as the Parliamentary Service Act.

ATTACHMENT

WORKPLACE RELATIONS AMENDMENT REGULATIONS 1999 (No. 7)

Regulation 1

Regulation 1 sets out the name of the regulations.

Regulation 2

Regulation 2 provides for the commencement of the regulations. The regulations commence at the same time as the Public Service Act 1999, except for Schedule 2, which commences at the same time as the Parliamentary Service Act 1999.

Regulation 3

Regulation 3 is a formal provision, providing that the Workplace Relations Regulations 1996 (the Regulations) are amended as set out by Schedules 1 and 2 to the regulations.

Schedule 1 - Amendments commencing on commencement of Public Service Act 1999

Item 101

Item 101 of Schedule 1 amends the Regulations by substituting a new subparagraph 30ZE(1)(a)(i) for existing subparagraphs (i), (ii) and (iii) which are made obsolete by the new Public Service Act 1999. The new provision allows a certified agreement to displace an Agency Head determination made under s.24(1) of the Public Service Act 1999. There is an exception for determinations that implement Machinery of Government changes (which may not be so displaced).

Item 102

Proposed Item 102 of Schedule 1 amends the Regulations by substituting a new paragraph 30ZE(1)(b) that prescribes conditions of employment provided for in the determinations that are prescribed under Item 101.

Item 103

Item 103 of Schedule 1 amends the Regulations by substituting new subregulation 30ZE(2) for existing subregulations (2) and (3). The effect of the change is to remove a redundant reference to Schedule 5 and to insert a definition of Agency Head.

Item 104

Item 104 of Schedule 1 amends the Regulations by substituting a new subparagraph 30ZJ(1)(a)(i) for existing subparagraphs (i), (ii) and (iii) which are made obsolete by the new Public Service Act 1999. The new provision allows an AWA to displace an Agency Head determination made under s.24(1) of the Public Service Act 1999. There is an exception for determinations that implement Machinery of Government changes (which may not be so displaced).

Item 105

Item 105 of Schedule 1 amends the Regulations by substituting a new paragraph 30ZE(1)(b) that prescribes conditions of employment provided for in the determinations that are prescribed under Item 104.

Item 106

Item 106 of Schedule 1 amends the Regulations by substituting new subregulation 30ZJ(2) for existing subregulations (2) and (3). The effect of the change is to remove a redundant reference to Schedule 10 and to insert a definition of Agency Head.

Item 107

Item 107 of Schedule 1 amends the Regulations by omitting existing Schedules 5 and 10 which contain matters made obsolete by the new Public Service Act 1999.

Schedule 2 - Amendments commencing on commencement of Parliamentary Service Act 1999

Item 201

Item 201 of Schedule 2 amends the Regulations by inserting a new subparagraph 30ZE(1)(a)(ii) which allows a certified agreement to displace a determination made by a Secretary under s.24(1) of the Parliamentary Service Act 1999.

Item 202

Item 202 of Schedule 2 amends the Regulations by inserting a new subparagraph 30ZE(1)(b)(ii) that prescribes conditions of employment provided for in the determinations that are prescribed under Item 20 1.

Item 203

Item 203 of Schedule 2 amends the Regulations by inserting a definition of Secretary in new subregulation 30ZE(2) (inserted by Schedule 1).

Item 204

Item 204 of Schedule 2 amends the Regulations by inserting a new subparagraph 30ZJ(1)(a)(ii) which allows an AWA to displace a determination made by a Secretary under s.24(1) of the Parliamentary Service Act 1999.

Item 205

Item 205 of Schedule 2 amends the Regulations by inserting a new subparagraph 30ZJ(1)(b)(ii) that prescribes conditions of employment provided for in the determinations that are prescribed under Item 204.

Item 206

Item 206 of Schedule 2 amends the Regulations by inserting a definition of Secretary in new subregulation 30ZJ(2) (inserted by Schedule 1).