EXPLANATORY STATEMENT

 

Select Legislative Instrument 2005 No. 35

 

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

 

Workplace Relations Act 1996

 

Workplace Relations Amendment Regulations 2005 (No. 1)

 

 

Section 359 of the Workplace Relations Act 1996 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all 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.

 

Section 170MN of the Act prohibits employees or organisations from taking industrial action to support or advance claims against the employer in respect of the employment of employees covered by the certified agreement prior to the nominal expiry date of that agreement. 
Paragraph 170ND(b) provides that section 170MN a penalty provision for the purposes of Division 10 of Part VIB of the Act which concerns enforcement and remedies in relation to certified agreements.

 

Section 170NF of the Act provides that an eligible court may make an order imposing a penalty on a person who contravenes a penalty provision.  An eligible court is defined by section 170NE to mean the Federal Court of Australia, a District, County or Local Court, or a magistrate’s court. 
Subsection 170NF(4) lists those persons with standing to make an application to an eligible court for the imposition of a penalty.  Those persons are: employees covered by the certified agreement, persons bound by the agreement (employers and organisations of employees may be so bound) and persons who are affected by the industrial action concerned.  In addition, paragraph 170NF(4)(d) provides that such an application may be brought by, “any other person prescribed by the regulations”.  Currently, no persons have been prescribed in the regulations.

 

The purpose of the Regulations is to prescribe inspectors appointed under subsection 84(2) of the Act as persons who may apply to an eligible court for an order imposing a penalty for contravention of section 170MN.  This regulation is consistent with inspector’s powers and functions in relation to the observance of the Act, awards and certified agreements as provided for under subsection 84(4A) and section 86 of the Act.  In addition to these general powers and functions, the Act also confers on inspectors specific powers and functions relating to compliance with the Act, awards, certified agreements and orders made by the Australian Industrial Relations Commission (the Commission).  For example, section 178 of the Act enables inspectors to commence civil proceedings in a court in relation to a breach of an award, order of the Commission or a certified agreement.

 

The regulations prescribe inspectors for the purposes of paragraph 170NF(4)(d) of the Act.

 

The regulations commenced on registration on the Federal Register of Legislative Instruments.