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FAIR WORK AMENDMENT REGULATIONS 2009 (NO. 3) (SLI NO 300 OF 2009)
EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 300
Issued by the authority of the Minister for Employment and Workplace Relations
Fair Work Act 2009
Fair Work Amendment Regulations 2009 (No.3)
Subsection 796(1) of the Fair Work Act 2009 (the Act) provides that the Governor-General may make regulations 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.
The Regulations make a number of minor amendments to several machinery provisions in the Fair Work Regulations 2009 (the Principal Regulations), which were made on 29 June 2009.
The proposed Regulations would:
(a) clarify the operation of the regulations relating to:
· signature requirements for enterprise agreements;
· the meaning of ‘temporary absence – illness or injury’ in relation to employees;
· the obligations of employing authorities within the public sector, and
(b) make various minor and technical amendments, such as correcting inaccurate references in the Principal Regulations.
Signature requirements for enterprise agreements
Section 185(5) of the Act provides that the Governor-General may make regulations prescribing requirements relating to the signing of enterprise agreements. Subsection 210(4) of the Act provides that the regulations may prescribe requirements relating to the signing of variations to enterprise agreements.
These regulations require the signatures of both the employer(s) and at least one representative of the employees, who may or may not be an employee bargaining representative. For example, an employee who is not a bargaining representative may sign on behalf of all employees. One of the benefits of this approach will be that an employer would not need to obtain a bargaining order to compel a bargaining representative to sign as the employees could appoint any person to sign on their behalf.
Fair Work Australia was consulted on the development of the proposed regulations relating to signature requirements for enterprise agreements and on the proposed amendments to regulations dealing with information that must be provided to the Minister and to the Fair Work Ombudsman.
General protections – ‘temporary absence – illness or injury’
Section 352 of the Act prohibits an employer from dismissing an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations. An equivalent protection for non-national system employees is set out in paragraph 772(1)(a) of the Act.
These regulations make technical amendments to paragraphs 3.01(5)(b) and 6.04(4)(b) of the Principal Regulations to correct ambiguities arising from the unintended omission of the word ‘paid’ before ‘personal/carer’s leave’ in these regulations. Given the technical nature of the amendments, no separate consultation on these amendments was required.
Employing authorities
Section 795 of the Act states that for the purposes of the Act, an employer of a public sector employee must act ‘only through the employee's employing authority acting on behalf of the employer’. Schedule 6.3 to the Principal Regulations specifies employing authorities. In most cases, the ‘employing authority’ is the Minister and/or Agency Head.
There is currently no express capacity under the Act or the Principal Regulations for an ‘employing authority’ to delegate, or authorise other officers to perform, its functions or obligations. As a consequence, employing authorities will be required to personally perform employer functions other than those requiring an employer to ‘take all reasonable steps’ to do something or mechanical tasks associated with employer functions.
These regulations amend Schedule 6.3 to include persons authorised by an Agency Head or equivalent as prescribed ‘employing authorities’ for public sector employment. This will allow people other than the Agency Head (or equivalent) to perform the powers and functions of the ‘employing authority’. Given the technical nature of the amendments, no separate consultation on these amendments was required.
Details of the proposed regulations are in the Attachment.
A Regulation Impact Statement (RIS) was prepared for the Fair Work Act 2009, therefore a separate RIS has not been prepared for these regulations.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
FAIR WORK AMENDMENT REGULATIONS 2009 (No. 3)
This regulation provides that the Regulations are to be known as the Fair Work Amendment Regulations 2009 (No. 3).
This regulation provides that the Regulations are to commence on the day after they are registered.
This regulation provides that the Fair Work Regulations 2009 (the Principal Regulations) are to be amended in accordance with Schedule 1.
This is a technical amendment to correct an inaccurate reference in paragraph 1.16(c) in the Principal Regulations.
Item 2 – After regulation 2.06
This item inserts new regulation 2.06A (Bargaining representative must
apply for FWA approval of an enterprise agreement – requirements for signing
agreement) after regulation 2.06 in the Principal Regulations.
Paragraph 185(2)(a) of the Act requires that an application for Fair Work Australia to approve an enterprise agreement must be accompanied by a signed copy of the agreement. Regulation 2.06A makes clear that a copy of an enterprise agreement is a signed copy only if it is signed by both the employer covered by the agreement and at least one representative of the employees covered by the agreement. Unless the representative of the employees is an employee in a class of employees who will be bound by the agreement, the representative’s signature is not taken to indicate that the representative intends to be bound by the agreement.
Item 3 – After regulation 2.09
Paragraph 210(2)(a) of the Act requires that an application to Fair Work Australia for the variation of an enterprise agreement must be accompanied by a signed copy of the variation. Regulation 2.09A makes clear that a copy of an enterprise agreement is a signed copy only if it is signed by both the employer covered by the agreement as varied and at least one representative of the employees covered by the agreement as varied. Unless the representative of the employees is an employee in a class of employees who will be bound by the agreement as varied, the representative’s signature is not taken to indicate that the representative intends to be bound by the agreement as varied.
This item makes a technical amendment to correct an ambiguity arising from the unintended omission of the word ‘paid’ before ‘personal/carer’s leave’ in paragraph 3.01(5)(b) in the Principal Regulations.
This item makes a technical amendment to correct an ambiguity arising from the unintended omission of the word ‘paid’ before ‘personal/carer’s leave’ in paragraph 6.04(4)(b) in the Principal Regulations.
Item 6 - Schedule 5.2, Part 1, item 8.2, column 2
Item 7 – Schedule 5.2, Part 1, item 8.5, column 2
These are minor amendments to correct typographical errors in items 8.2 and 8.5 of Schedule 5.2 to the Principal Regulations.
Item 8 - Schedule 5.2, Part 1, item 15.1, column 2, paragraphs (l) (m) and (n)
This item makes three amendments to Schedule 5.2 in the Principal Regulations which, together with regulation 5.04, sets out the particular information and documents that must be provided by the President of Fair Work Australia to the Minister and to the Fair Work Ombudsman.
Item 9 – Schedule 6.3, item 1, column 3
Item 10 – Schedule 6.3, item 2, column 3
Item 11 – Schedule 6.3, item 3, column 3
Item 12 – Schedule 6.3, item 6 column 3
Item 13 – Schedule 6.3, item 7, column 3
Item 14 – Schedule 6.3, item 8, column 3
Item 15 – Schedule 6.3, item 9, column 3
Item 16 – Schedule 6.3, item 10, column 3
Item 17 – Schedule 6.3, item 11, column 3
Item 18 – Schedule 6.3, item 12, column 3
Item 19 – Schedule 6.3, item 13, column 3
These regulations amend Schedule 6.3 to the Principal Regulations to add persons authorised by an Agency Head or equivalent as prescribed ‘employing authorities’ for public sector employment. This will allow people other than the Agency Head (or equivalent) to perform the powers and functions of the ‘employing authority’.