Commonwealth Numbered Regulations - Explanatory Statements

[Index] [Search] [Download] [Related Items] [Help]


WORKPLACE RELATIONS REGULATIONS (AMENDMENT) 1997 NO. 48

EXPLANATORY STATEMENT

Statutory Rules 1997 No. 48

(Issued by the authority of the Minister for Industrial Relations)

Workplace Relations Act 1996

Workplace Relations Regulations (Amendment)

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

Paragraph 359(2)(c) of the WR Act allows regulations to be made prescribing fees to be charged in relation to proceedings under the Act.

Paragraph 359(2)(d).of the WR Act allows regulations to be made about the duties of the Industrial Registrar, the Deputy Industrial Registrars and any officers of the Commission.

Paragraph 83BH(4)(b) of the WR Act allows regulations to be made to prescribe the manner in which an authorised officer may take samples of any goods or substances from a workplace.

Paragraph 83BS(2)(b) of the WR Act permits disclosure of "protected information" relating to the identity of parties to Australian workplace agreements (AWAs) as prescribed in regulations.

Subsection 170CM(8) of the WR Act allows regulations to be made to exclude terminations of employment occurring in specified circumstances that relate to the succession, assignment or transmission of a business of the employer concerned,

Section 170NI of the WR Act allows regulations to be made, for the purposes of complementary State certified agreement legislation, prescribing mandatory and permitted modifications to the federal provisions.

Subsection 275(9) of the WR Act provides that the regulations may prescribe that a person is not a competent person to act as auditor of all or any organisations.

Section 280A allows regulations to be made prescribing circumstances in which a Registrar may conduct certain investigations in relation to the accounts or financial affairs of an organisation.

Subsection 285A(1) of the WR Act provides that a right of entry permit may be issued, in the form prescribed by regulations.

Subsection 4(1) of the Acts Interpretation Act 1901 provides that where an Act has been enacted but has not come into force, and that Act confers power to make a regulation, such a regulation may be made in anticipation of the commencement of that Act as if the Act had come into force. The Workplace Relations and Other Legislation Amendment Act 1996 (the WROLA Act) received the Royal Assent on 25 November 1996. Schedule 10 of the WROLA Act has not yet been proclaimed.

Regulations 9 and 17 are made in anticipation of the commencement of Schedule 10 of the WROLA Act. The WROLA Act evinces no intention contrary to section 4 of the Acts Interpretation Act 1901. These regulations:

*       make provision for matters necessary or desirable to give effect to the provisions of Part VID of the WR Act (inserted by Schedule 10 of the WROLA Act, upon proclamation), including:

-       prescribing provisions relating to discrimination which must be included in each AWA:

:       regulation 30ZI and Schedule 8;

-       prescribing a model dispute settlement procedure, which will be deemed to be included in an AWA if the AWA does not contain such a procedure:

:       regulation 30ZI and Schedule 9;

-       setting out the conditions of employment in Commonwealth laws which may be displaced by an AWA:

:       regulation 30ZJ and Schedule 10;

-       prescribing the modifications to the AWA provisions of the WR Act which a complementary State law is required, or permitted, to make prior to applying those provisions as a law of the relevant State:

:       regulation 30ZN and Schedule 11;

-       setting out procedures connected with the making and filing of an AWA:

:       regulations 30ZO, 30ZP and 30ZQ;

-       providing for limited disclosure of information that may identify the parties to an AWA for the purposes of providing analyses of trends in agreement making, and preparing the reports on bargaining required by the WR Act:

:       regulations 8D and 30ZM;

*       prescribe the modifications to the certified agreement provisions of the WR Act which a complementary State law is permitted to make prior to applying those provisions as a law of the relevant State.

:       regulation 8 (which amends regulation 30ZF of the existing regulations) and amended Schedule 6;

*       make other minor or technical amendments to the Workplace Relations Regulations: regulations 3, 5, 6, 7, 10, 11, 12, 13 and 14. Regulation 2 and subregulation 3.1 are taken to have commenced on 5 December 1996.

The retrospective effect of these regulations does not contravene section 48 of the Acts Interpretation Act 1901. The retrospective operation of regulation 2.1 is purely to enable subregulation 3.1 to come into operation retrospectively. The retrospective operation of subregulation 2.1 has no detrimental effect on the rights of any person, and does not impose any liabilities.

The retrospective application of proposed subregulation 3.1 has no detrimental effect on the rights of any person, and does not impose any liabilities (see detailed notes in the attachment).

Regulations 9 and 17 commence on the same day as Schedule 10 to the WROLA Act (12 March 1997).

Regulations 4, 8, 15 and 16 commence on 12 March 1997. Although not directly related to VROLA. Act, it is considered desirable that these regulations commence

Schedule 10 of the V on the same day as regulations 9 and 17:

*       proposed regulation 4 relates to functions connected to the disclosure of information connected to AWAs; and

*       it will avoid confusion if all provisions relating to complementary State legislation commence on the same day (regulations 8, 15 and 16 relate to complementary State certified agreement legislation).

The remainder of the regulations commence on gazettal.

Details of the regulations are attached.

ATTACHMENT

WORKPLACE RELATIONS REGULATIONS (AMENDMENT)

Regulation 1

Regulation 1 provides for commencement of these regulations.

Subregulation 1.1 provides for the commencement of regulation 2 and subregulation 3.1. Regulation 2 and subregulation 3.1 are taken to have commenced on the same day as Schedule 3 to the Workplace Relations and Other Legislation Amendment Act 1996 ("the WROLA Act"). Schedule 3 of the WROLA Act commenced on 5 December 1996. The retrospective operation of these regulations is explained below in the notes to regulation 2 and subregulation 3.1 respectively.

Subregulation 1.2 provides for the commencement of regulations 9 and 17. Regulations 9 and 17 commence on the same day as Schedule 10 to the WROLA Act (12 March 1997).

Subregulation 1.3 provides for the commencement of proposed regulations 4, 8, 15 and 16. Regulations 4, 8, 15 and 16 commence on 12 March 1997. Although these proposed regulations are not made in anticipation of Schedule 10, it is appropriate, for differing reasons, that they commence at the same time as regulations 9 and 17.

The remainder of the regulations commence on gazettal, by reason of section 48 of the Acts Interpretation Act 1901.

Regulation 2

Subregulation 2.1 is a formal provision, providing that these regulations amend the Workplace Relations Regulations ("the existing regulations").

By reason of subregulation 1.1 this subregulation has retrospective operation.

Section 48(2) of the Acts Interpretation Act 1901 provides that a regulation has no effect if it would take before the date of commencement and as a result the rights of a person would be affected so as to disadvantage a person.

The retrospective operation of this regulation is purely to enable subregulation 3.1 to come into operation retrospectively. The retrospective operation of subregulation 2.1 has no detrimental effect on the rights of any person, and does not impose any liabilities.

The retrospective operation of subregulation 3.1 is outlined below.

Regulation 3

Regulation 3 effects a technical amendment, designed to remove any doubt as to the effectiveness of regulation 8B.

Regulation 8B of the existing regulations provides that an authorised officer may take a sample of any goods or substances after giving notice to the owner or other person in charge of the goods or substances, or an appropriate employee or other representative of the owner or person, of the authorised officer's intention to do so.

Regulation 8B was inserted by Statutory Rules 1996 No. 269, and commenced on the date of commencement of Schedule 3 (Employment Advocate) to the WROLA Act, namely 5 December 1996.

However, regulation 6B was Gazetted on 11 December 1996, 6 days after commencement.

Section 48(2) of the Acts Interpretation Act 1901 provides that a regulation has no effect if it would take effect before the date of commencement and as a result the rights of a person would be allected so as to disadvantage a person.

Regulation 8B could be said to disadvantageously affect the rights of a person as it allows the taking of a sample. However, no authorised officers have been appointed and no samples have been taken.

Subregulation 3.1 repeals Regulation 8B with effect immediately after its commencement, thereby allowing it no possible operation.

Subregulation 3.2 inserts a new Regulation 8B (in exactly the same terms) but to take effect on Gazettal, thereby removing any possibility of disadvantage.

Regulation 4

Subregulation 4.1 inserts a new Division 3 (Miscellaneous), consisting of regulation 8D, into Part IIIA of the existing regulations, which prescribes matters relating to the Employment Advocate.

Section 83BS of the Workplace Relations Act 1996 (the WR Act) is designed to protect the confidentiality of AWAs, prohibiting disclosure of information by an "AWA official" that will identify a party to an AWA (or information that the person disclosing has reasonable grounds to believe will disclose the identity of a party to an AWA):

*       an "AWA official" is defined to mean the Employment Advocate, a delegate of the Employment Advocate or an authorised officer; that is, an officer appointed by the Employment Advocate under section 83BG,

*       section 170WHB makes parallel provision in relation to "Registry official" (refer to notes on regulation 30ZM for further details).

Subsection 83BS(2) creates exceptions to this prohibition. Paragraph (2)(b) allows regulations to be made authorising disclosure.

Regulation 8D allows disclosure of information to "authorised persons" for the limited purposes of:

*       providing analyses of trends in agreement making;

*       preparing the reports on enterprise bargaining required by section 358A of the WR Act.

An "authorised person" is:

*       the Employment Advocate;

*       a person authorised in writing by the employment Advocate; and

*       in relation to preparing the reports required by section 358A of the WR Act (but not otherwise), a person authorised in writing by the Minister for Industrial Relations.

This regulation is designed to allow appropriate reporting on bargaining outcomes and the bargaining process, while limiting access to information that will identify a party to an AWA.

Regulation 5

Subregulation 5.1 omits regulation 12 of the existing regulations, which relates to demarcation disputes.

Regulation 12 is no longer necessary as the provisions of the WR Act to which it related were repealed by the WROLA Act: that is, former subsection 118A(5) and 118A(6). The obligations set out in regulation 12 are not relevant to new subsections 118A(5) and 118A(6).

Regulation 6

Subregulation 6.1 makes a technical amendment to regulation 30BD of the existing regulations to replace a reference to 'the Registrar' (meaning the Industrial Registrar) with 'a Registrar' (meaning the Industrial Registrar or a Deputy Industrial Registrar).

Powers under the Act are generally conferred directly on 'a Registrar'.

Regulation 30BD of the existing regulations provides for the filing fee for an application to the Australian Industrial Relations Commission in respect of a termination of employment matter. Regulations 30BD(2) provides for waiver on the ground of serious hardship, by 'the Registrar'.

Subregulation 6.1 amends subregulation 30BD(2) by-omitting 'the Registrar' and substituting 'a Registrar'. This amendment will prevent serious administrative inconvenience.

Regulation 7

Subregulation 7.1 amends regulation 30CD of the existing regulations.

Regulation 30CD defines the circumstances in which a termination of employment that occurs because of the succession, assignment or commission of a business is excluded from the operation of section 170CM of the WR Act, which requires the provision of notice or pay in lieu except in cases of serious misconduct.

The first exemption provided by regulation 30CD is where the new employer is under an obligation to recognise service with the old employer as continuous with service to the new employer.

The second exemption was intended to cover cases where the new employer is under an obligation which will effectively ensure that the employee is employed throughout the notice period that would have been required of the old employer, or, in the case of a termination during that period, given the same amount of notice or pay in lieu as would have been required of the old employer.

However, the current drafting of regulation 30CD(b) is ineffective. It refers to an obligation on the new employer if there 'had been' a termination (except for serious misconduct) during the minimum period that would have applied if the employee's employment 'had been' terminated at the time the succession, assignment or transmission occurred; whereas it should refer to an obligation on the new employer: if there is a termination (except for serious misconduct) during the minimum period that would have applied, but for this regulation, to the termination of employment that occurred because of the succession, assignment or transmission.

Amendments to regulation 30CD are intended to ensure that the intended exception to section 170CM is effectively implemented.

Regulation 8

Regulation 8 modifies existing subregulation 30ZF(1), and insert a new subregulation 30ZF(2).

Subsection 170NI(1) of the WR Act allows a complementary State law to confer functions and powers on the Australian Industrial Relations Commission. Subsection 170NI(2) defines a "complementary State law" as one which applies the certified agreement provisions of the WR Act as a law of the State, with the modifications required or permitted by the regulations.

The amendment to subregulation 30ZF(1) ensures that the modifications set out in Part 1 of Schedule 6 to the regulations are required for the purposes of section 170NI. Part 1 of the Schedule (as it amended under regulation 16) requires a complementary State law to make various amendments to the certified agreement provisions of the WR Act prior to applying those provisions as a State law. In particular, a State must modify section 170LH, and paragraph 170LI(1)(a). A State must also omit Division 3 of Part VIB of the WR Act.

Subregulation 30ZF(2) provides that the modifications set out in Part 2 of Schedule 6 to the regulations are permitted for the purposes of section 170NI. New Part 2 of Schedule 6 is inserted by regulation 16. The new Part allows a complementary State law to make various separate modifications to the certified agreement provisions before applying those provisions as a State law:

*       first, a State may omit the heading to Division 2 of Part VIB of the WR Act and insert a new heading in the terms prescribed;

*       secondly, a State may insert a new paragraph 170LH(b) and a new subsection 170LI(3) in the terms prescribed. This gives a State the option of ensuring that an employer is only able to make a certified agreement under the complementary State law in circumstances where the employer is bound by a federal award or agreement in respect of any of the terms and conditions of the employees to be covered by the complementary agreement. The employer will not be able to make an agreement under the complementary State law if he or she is solely bound by a State award or agreement in respect of the employees to be covered by the covered agreement;

*       thirdly, a State may modify paragraph 170MB(1)(b) so as to ensure that a certified agreement made under the complementary State law is transmitted to any new employer who became a successor in business to the original employer;

*       fourthly, a State may insert new subsections 170MB(1A) and (1B) in the terms prescribed, and modify subsection 170MB(2). The new subsections ensure that an agreement made under Division 2 of Part VIB of the WR Act (in its operation as a law of the Commonwealth) will be deemed to be transmitted to a new employer and continued in force under the complementary State law in circumstances where section 170MB of the WR Act (in its operation as a law of the Commonwealth) is insufficient to continue the agreement in force. This could occur, for instance, where the successor employer is not a constitutional corporation. Where an agreement is continued in force under these subsections (in their operation as a law of a State), the successor employer Will be bound by the agreement as if it had been made under the complementary State law, and transmitted to the successor under subsection 170MB(1) (in its operation as a law of a State);

*       finally, a State may omit paragraph 170NE(a), and insert a new subsection 178(10) in the terms prescribed. These modifications reflect the fact that an agreement certified by the Commission in the exercise of powers conferred upon it by a complementary State law cannot be enforced by the Federal Court of Australia, in the exercise of its original jurisdiction. Such a complementary agreement must be enforced, instead, in a District, County, Local or magistrate's court. Similarly, a claim alleging a breach of the certified agreement provisions (in their operation as a law of a State) cannot be heard by the Federal Court in the exercise of its original jurisdiction. These modifications clarify this position.

A State may select which, if any, of the permitted modifications should be made.

Regulation 9

Subregulation 9.1 inserts a new Part 5C into the existing regulations. New Part 5C makes provision for matters relating to Australian workplace agreements (AWAs).

New Part 5C consists of 10 new regulations (30ZH-30ZQ).

Regulation 30ZH

Regulation 30ZH is a technical provision which provides that words used in Part 5C of the regulations have the same meaning as in Part VID of the WR Act (which also relates to AWAs).

Regulation 30ZI

Subsection 170VG(1) of the WR Act requires the employer to ensure that an AWA includes the provisions relating to discrimination that are prescribed by the regulations. The prescribed provisions relating to discrimination will be automatically included in any AWA that does not include the prescribed provisions.

Subregulation 30ZI(1) provides that the provisions set out in Schedule 8 of the regulations are prescribed. Schedule 8 is inserted by regulation 17. The clause set out in Schedule 8:

*       sets out a general statement of intent to achieve the anti-discrimination objective of the WR Act (section (j)); and

*       provides that any dispute concerning the anti-discrimination provisions and their operation will be progressed initially under the dispute resolution procedure provided in the AWA:

:       details on the requirements relating to dispute resolution procedures are provided below;

The clause also makes it clear that it is not intended to widen exemptions under applicable Commonwealth, State or Territory legislation. However, specific exemptions from the clause are provided in relation to:

*       junior rates of pay,

*       discriminatory conduct (or conduct having a discriminatory effect) based on the inherent requirements of a particular position;

*       employment as a member of gag of an institution that is conducted in accordance with religious doctrines, tenets, beliefs or teachings.

Subsection 170VG(3) of the WR Act requires the employer to ensure that an AWA includes a dispute resolution procedure. A model procedure (to be prescribed by the regulations) is automatically included in any AWA that does not include a dispute resolution procedure.

Subregulation 30ZI(2) provides that the model procedure set out in Schedule 9 of the regulations is prescribed. Schedule 9 is inserted by regulation 17.

The model clause set out in Schedule 9:

*       requires workplace level consultations (at such levels as are appropriate for the particular workplace) to take place to seek to resolve the matter in dispute; and

*       provides for access to mediation at the request of either party if the matter cannot be resolved at the workplace level, and requires parties to take part in the mediation process in good faith.

The model clause allows the parties to be represented during discussions at the workplace level, and during the mediation process.

The model procedure also requires the parties to continue to work in accordance with the contract of employment while the dispute resolution process is conducted, subject to an occupational health and safety exception. The clause makes it clear that this exception operates subject to appropriate exceptions contained in State or Territory occupational health and safety legislation. (This reflects subsection 170VR(2), which provides that an AWA does not override the provisions of State or Territory occupational health and safety law.)

The model procedure does not guarantee an outcome. The responsibility for achieving a satisfactory outcome rests ultimately with the parties.

Regulation 30ZJ

Subsection 170VR(4) of the WR Act allows an AWA to displace, to the extent of any inconsistency, prescribed conditions of employment contained in prescribed Commonwealth laws.

Regulation 30ZJ would set out the conditions of employment which may be displaced by an AWA. These are as follows:

*       each condition of employment in every determination made under section 82D of the Public Service Act 1922 (the PS Act); and

*       each condition of employment of each specified provision of each listed law set out in Schedule 10 to the regulations, unless the Schedule specifies only one or more of the conditions in any specified provision.

In turn, Schedule 10 (inserted by regulation 17) prescribes the following conditions of employment as capable of being displaced:

*       subsection 28(5) of the Public Service Act 1922 (the PS Act);

*       subsection 29A(3) of the PS Act (it is intended that this provision should only be displaced to the extent necessary to allow certified agreements to broadband classifications for the purpose of allowing officers to progress through approved classifications within the broadband whilst still holding the same office);

*       section 47B of the PS Act (it is intended that this provision should only be displaced to the extent necessary to allow re-appointment where an employee commences proceedings under Part VIA, Division 3 of the WR Act and, in settlement of the claim, the parties agree that the officer or employee be re-instated (or the Court or Commission makes an order or award requiring reinstatement));

*       subsection 62(10) of the PS Act, in relation to a direction to dismiss an officer from the Service under paragraph 62(6)(b) of the PS Act;

*       subsection 63(5) of the PS Act, in relation to a direction to dismiss an officer from the Service under paragraph 63(1)(d) of the PS Act;

*       section 63D of the PS Act in relation to a direction to dismiss an officer from the Service, under paragraph 62(6)(b) or 63(1)(d) of the PS Act;

*       section 63G of the PS Act, in relation to a direction to dismiss an officer from the Service, under paragraph 62(6)(b), paragraph 63(1)(d), paragraph 63K(3A)(d) or subsection 63L(3A)(d) of the PS Act; section 63N of the PS Act;

*       section 63P of the PS Act in relation to a direction to dismiss an officer from the Service, under paragraph 63K(3A)(d), 63L(3A)(d) or 63M(1)(d) of the PS Act;

*       subsection 76L(5) of the PS Act, in relation to a notice that an officer is to be retired under Paragraph 76L(3)(c) of the PS Act;

*       subsection 76L(5A) of the PS Act, in relation to a notice that an officer is to be retired under paragraph 76L(3)(c) of the PS Act;

*       subsection 76L(7) of the PS Act, in relation to a notice that an officer is to be retired under paragraph 76L(3)(c) of the of the PS Act;

*       subsection 76M of the PS Act in relation to a notice that an officer (other than an officer who has consented to be given such notice) is to be retired under paragraph 76L(3)(c) of the PS Act;

*       subsection 76W(4) of the PS Act, in relation to a notice that an officer is to be retired under subsection 76W(1) of the PS Act;

*       subsection 76W(5) of the PS Act, in relation to a notice that an officer is to be retired under subsection 76W(1) of the PS Act; section 76Z of the PS Act, in relation to a notice that an officer is to be retired under subsection 76W(1) of the of the PS Act, unless, prior to receiving the notice, the officer consented to the granting of the notice;

*       regulation 54(2) of the Public Service Regulations (the PS Regulations);

*       regulation 120 of the PS Regulations, in relation to a notice that an officer is to be retired under paragraph L(3)(c) of the PS Act;

*       regulation 120C of the PS Regulations, in relation to a notice that an officer is to be retired under subsection 76W(1) of the PS Act;

*       regulation 120D of the PS Regulations, in relation to a notice that an officer is to be retired under subsection 76W(1) of the PS Act;

*       regulation 141 of the PS Regulations, in relation to a direction to dismiss an officer from the Service, under paragraph 62(6)(b), paragraph 63(1)(d), subsection 63K(3), subsection L(3) or subsection 63M(1) of the PS Act;

*       regulation 166 of the PS Regulations, in relation to a direction to dismiss an employee from employment, under paragraph 62(6)(b), paragraph 63(1)(d), subsection 63K(3), subsection 63L(3) or subsection 63M(1) of the PS Act; and

*       regulation 167 of the PS Regulations, in relation to a direction to dismiss an employee from employment, under paragraph 62(6)(b), paragraph 63(1)(d), subsection 63K(3), subsection 63L(3) or subsection 63M(1) of the PS Act.

Regulation 30ZK

Subsection 170WC(4) of the WR Act provides that an employer is not entitled to lock out an employee unless continuity of employment for such purposes as are prescribed by the regulations is not affected by the lockout,

Subregulation 30ZK(1) provides that a lockout does not break continuity of service for the purpose of assessing eligibility for, or calculating the amount of, any benefit or entitlement arising from the employee's employment including, in particular:

*        superannuation entitlements;

*        authorised leave entitlements (defined in subregulation 30ZK(2));

*        remuneration and promotion as affected by seniority; and

*        entitlement (if any) to notice on termination of employment.

Regulation 30ZL

Subsection 170WD(1) provides that the immunity bestowed by section 170WC in relation to industrial action in pursuit of an AWA does not apply unless 3 working days notice of the intention to take the AWA industrial action was given to the other party.

The notice is to be given in the form required by the regulations.

Regulation 30ZL provides that notice must be in writing and include, or be accompanied by, particulars of:

*       any matter that the party intending to take the action proposes be dealt with by the AWA;

*       the proposed nominal expiry date of the AWA:

       - under section 170Va the nominal expiry date cannot be more than three years after that date upon which the AWA is made;

*       the proposed date or dates upon which the action win take place;

*       the proposed duration of the action; and

*       the proposed nature and form of the action.

Regulation 30ZM

Section 170VJM of the WR Act is designed to protect the confidentiality of AWAs, prohibiting disclosure of information by a "Registry official" that will identify a party to an AWA (or information that the person disclosing has reasonable grounds to believe will disclose the identity of a party to an AWA):

*       a "Registry official" is defined to mean the Industrial Registrar, or a member of the staff of the Industrial Registry (including a Deputy Industrial Registrar);

*       section 83BS makes parallel provision in relation to "AWA officials" (refer to notes on regulation 8D (above) for further details).

Subsection 170WBB(2) creates exceptions to this prohibition. Paragraph (2)(b) allows regulations to be made authorising disclosure.

Regulation 30ZM would allow disclosure of information to "authorised persons" for the limited purposes of:

*       providing analyses of trends in agreement making;

*       preparing the reports on enterprise bargaining required by section 358A of the Act.

An "authorised person" is:

*       the Employment Advocate;

*       a person authorised in writing by the employment Advocate; and

*       in relation to preparing the rorts required by section 358A of the WR Act (but not otherwise), a person authorised in writing by the Minister for Industrial Relations.

This regulation is designed at allow, appropriate reporting on bargaining outcomes and the bargaining process, while limiting access to information that will identify a party to an AWA.

Regulation 30ZV

Subsection 170WKA(1) of the WR Act allows a complementary State law to confer functions and powers on the Employment Advocate and the Australian Industrial Relations Commission. Subsection 170WKA(2) defines a "complementary State law' as one which applies the AWA provisions of the WR Act as a law of the State, with the modifications required or permitted by the regulations.

Subregulation 30ZN(1) provides that the modifications set out in Part 1 of Schedule 11 are required for the purposes of section 170WKA.

Schedule 11 to the regulations is inserted by regulation 17. Part 1 of the Schedule requires a complementary State law to modify section 170W. This ' modification ensures that the complementary State law only gives effect to an AWA where the employer is not a constitutional corporation or the Commonwealth, or where the employee is not employed in a Territory, nor engaged in certain types of interstate trade or commerce.

The State law would not give effect to an AWA where an employer is a constitutional corporation or the Commonwealth, or where the employee is employed in a Territory, or engaged in certain interstate trade or commerce. This would be done by the WR Act itself.,

Subregulation 30ZN(2) provides that the modifications set out in Part 2 of Schedule 11 are permitted for the purposes of section 70WKA. Part 2 of the Schedule allows a complementary State law to make various separate modifications to the AWA provisions before applying those provisions as a State law:

*       first, a State may omit paragraph (a) of the definition of "eligible court" in section 170VA. This modification reflects the fact that an AWA approved by the Employment Advocate or the Commission in the exercise of powers conferred by a complementary State law cannot be enforced by the Federal Court of Australia, in the exercise of its original jurisdiction. Such a complementary AWA must be enforced, instead, in a District, County, Local or magistrate s court. Similarly, a claim alleging a breach of the AWA provisions (in their operation as a law of a State) cannot be heard by the Federal Court in the exercise of its original jurisdiction. This modification clarifies this position;

*       secondly, a State may insert a new paragraph 170VC(g) in the terms prescribed. This gives a State the option of ensuring that an AWA made under the complementary State law is only given effect in circumstances where the employer is bound by a federal award or agreement in respect of any', of the terms and conditions of the employee to be covered by the complementary AWA. The employer could not make an AWA under the complementary State law if he or she was solely bound by a State award or agreement in respect of the employee to be covered by the proposed AWA;

*       thirdly, a State may insert a new paragraph 170VC(h) in the terms prescribed. This gives the State the option of ensuring that an AWA made under the complementary State law is not given effect in circumstances where the employee falls within certain categories of State government employees;

*        fourthly, a State may modify subsection 170VS(1) so as to ensure that an AWA made under the complementary State law is transmitted to any new employer who became a successor in business to the original employer;

*       fifthly, a State may insert a new subsection 170VS(1A) in the terms prescribed. The new subsection would ensure that, despite subsection 170VS(1), an AWA would not be transmitted to a new employer if he or she employed the employee in certain categories of State government employment. By qualifying the operation of subsection 170VS(1), new subsection 170VS(1A) would also qualify the operation of subsection 170VS(IB), should a State decide to insert the latter provision. This is because of the effect of paragraph 170VS(1B)(e);

*       finally, a State may insert a new subsection 170VS(IB) in the terms prescribed. The new subsection would ensure that an AWA made under the provisions of WR Act (in its operation as a law of the Commonwealth) will be deemed to be transmitted to a new employer and continued in force under the complementary State law in circumstances where section 170VS of the WR Act (in its operation as a law of the Commonwealth) is insufficient to continue the agreement in force. This could occur, for instance, where the successor employer is not a constitutional corporation. Where an AWA is continued in force under subsection 170VS(IB) (in its operation as a law of a State), the successor employer will be bound by the AWA as if it had been made under the complementary State law.

A State may select which, if any, of the permitted modifications should be made.

Regulation 30ZO

Paragraph 170WL(b) of the Act allows regulations to be made in relation to the qualifications and appointment of bargaining agents.

Subregulation 30ZO(1) excludes certain persons from being appointed or holding an appointment as a bargaining agent:

*       persons who have been appointed as the bargaining agent for the other party to the AWA;

*       persons who are bankrupt or who are applying to take the benefit of any law for the relief of a bankrupt or insolvent debtor,

*       persons who have not attained the age of 18 years. Subregulation 30ZO(2) provides that where persons have been convicted of:

*       an offence against a Commonwealth, State or Territory law punishable by imprisonment for 1 year of longer, or;

*       an offence against a Commonwealth, State or Territory law involving dishonesty and punishable by imprisonment for 6 months or longer, or;

*       an offence in connection with the negotiation of a certified agreement, an old IR agreement (that is, an agreement certified under the Industrial Relations Act 1988 before amendments made by the Workplace Relations and Other Legislation Amendment Act 1996 commenced operation on 31 December 1996), an AWA or ancillary document (whether or not as a bargaining agent) or a State agreement under a State law, or;

*       an offence under the WR Act

then that person is excluded from being appointed or holding an appointment as a bargaining agent for a period of 5 years from the date of conviction, or if imprisoned, from the date of release.

Subregulation 30ZO(3) allows a person who has been excluded from being appointed as a bargaining agent to apply to the Court for leave to hold an appointment as a bargaining agent. In granting leave the Court may impose any conditions or restrictions that it sees fit (subregulation 30ZO(4)). The Court may revoke such leave at any time, on the application of the Employment Advocate (subregulation 30ZO(5)).

Subregulation 30ZO(6) provides that where an organisation or other incorporated body is appointed as a bargaining agent it it a condition of such appointment that each individual who carries out the functions of a bargaining agent is not excluded by the terms of the regulations from being a bargaining agent. This subregulation is intended to ensure that persons who are excluded from acting as bargaining agents are not able to become involved in the bargaining process as an official or employee of a corporate entity.

Regulation 30ZP

Paragraph 170WL(c) of the WR Act allows regulations to be made in relation to the required form of Australian workplace agreements (AWAs) and ancillary documents.

Regulation 30ZP provides that every AWA and ancillary document must be in the English

language, be printed in legible typescript and include the full name and address of each party who

signs the document.

Regulation 30ZQ

Paragraph 170WL(d) of the WR Act allows, regulations to be made in relation to the witnessing of signatures on AWAs and ancillary documents.

Subregulation 30ZQ(1) provides that a person who witnesses an AWA or an ancillary document must include his or her full name and address.

Subregulation 30ZQ(2) provides that certain people are not be able to witness signatures on AWAs or ancillary documents:

*       the other party to the AWA or ancillary document;

*       the bargaining agent of the other party to the AWA or ancillary document; or

*       where the other party to an' AWA or ancillary document is a corporation - a director or person involved in the day to day management of the corporation.

Regulation 10

Subregulation 10.1 makes a technical amendment to regulation 107A of the existing regulations; replacing a reference to 'the Registrar' (meaning the Industrial Registrar) with 'a Registrar" (meaning either the Industrial Registrar or a Deputy Industrial Registrar)

Powers under the Act are generally conferred directly on 'a Registrar'.

Regulation 107A specifies the circumstances in which 'the Registrar' may conduct an investigation under section 280A of the WR Act into matters relating to the accounts or financial administration of registered' d organisations. However, section 280A provides for investigations to be conducted by '!a Registrar'.

Subregulation 10.1 remedies this in: consistency.

Regulation 11

Subregulation 11.1 remedies a min or drafting error in regulation 109A

Regulation 109A sets out the requirements for an application for a "right of entry permit". Paragraph (c) of regulation 109A requires the application to state the name of the person in whose name the "certificate" is to be issued.

This regulation removes the reference to "certificate" and substitutes "permit".

Regulation 12

Subregulation 12.1 makes a technical amendment to regulation 10913; substituting a reference to "Form 12" with "Form 1V.

This amendment remedies a drafting error.

Regulation 109B of the existing regulations prescribes "Form 12" as the form for a permit to enter and inspect premises as authorised by section 285A(1) of the WR Act.

However, "Form 12" also prescribe's the form for a certificate to identify a conscientious objector for the purposes of section 267(1) of the WR Act.

Subregulation 12.1 remedies this defect, by renumbering the form concerned with entry permits as "Form 13

Regulation 13

Subregulation 13.1 makes a technical amendment to regulation 112 of the existing regulations.

Section 285 of the WR Act draws a, distinction, for the purposes of the accounting and audit provisions of the Act, between organisations with income of less than $20,000 and those with income of $20,000 or more. The income Emit was increased from $10,000 to $20,000 as a result of amendments to the WR Act which came into operation on 31 December 1996.

Section 275(9) provides that the regulations may prescribe that a person is not a competent

person to act as auditor of all or any organisations.

Regulation 112 of the existing regulations makes separate provision in relation to organisations based on their income. level. The income levels in the regulation reflect the levels before the WR Act was amended.

This amendment brings regulation 112 into fine with the amended legislation.

Regulation 14

Proposed subregulation 14.1 would make a technical amendment to Schedule 1 to remove the reference to the second occurring "Form 12" and substitute reference to "Form 13".

This amendment is related to proposed regulation 12.

Regulation 15

Subregulation 15.1 amends the heading of Schedule 5 to make it clear that it relates to certified agreements.

Schedule 5 prescribes the laws and conditions of employment which are able to be overridden by a certified agreement.

The amendment is required to differentiate Schedule 5 from Schedule 10 which makes similar provision for AWAs. (Regulation 17 of these regulations inserts Schedule 10)

Regulation 16

Subregulation 16.1 amends Schedule 6 of the existing regulations. Schedule 6 as amended sets out the modifications required, and permitted t o be made by State introducing complementary legislation relating to certified agreements.

The effect of these provisions is described in the notes on regulation 8, which amends regulation 30ZF of the existing regulations.

Regulation 17

Regulation 17 inserts Schedules 8, 9, 10 and 11.

Schedule 8 provides for the prescribed provisions relating to discrimination (see notes on subregulation 30ZI(1), above).

Schedule 9 provides for the prescribed model dispute resolution procedure (see notes on subregulation 30ZI(2), above).

Schedule 10 sets out the Commonwealth laws and conditions of employment that are prescribed for the purposes of section 170VR(4). The effect of prescription is that an Australian Workplace Agreement will prevail over such conditions to the extent of any inconsistency. (Further details are provided in the notes on regulation 3UJ).

Schedule 11 sets out the modifications required and permitted to be made by State introducing complementary legislation relating to AWAs. (Details on the effect of these provisions is provided in the notes on regulation 30ZN.)


[Index] [Related Items] [Search] [Download] [Help]