WORKPLACE RELATIONS REGULATIONS (AMENDMENT) 1996 NO. 351

Commonwealth Numbered Regulations - Explanatory Statements

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WORKPLACE RELATIONS REGULATIONS (AMENDMENT) 1996 NO. 351

EXPLANATORY STATEMENT

Statutory Rules 1996 No. 351

Issued by the Authority of the Minister for Industrial Relations

Workplace Relations and Other Legislation Amendment Act (No 2) 1996

Workplace Relations Regulations (Amendment)

Section 3 59 of the Workplace Relations Act 1996 (the Act) provides that the Governor-General may make regulations prescribing (inter alia) matters that are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The Regulations commence on the date of commencement of item 3 of Schedule 1 to the Workplace Relations and Other Legislation Amendment Act (No. 2) 1996, It is intended that item 3 of Schedule 1 will come into operation on 1 January 1997. (Section 4 of the Acts Interpretation Act 1901 provides for the exercise of statutory powers between the passing and commencement of an Act.)

Schedule 1 to the Workplace Relations and Other Legislation Amendment Act (No. 2) 1996 concerns the introduction of a new Part XV of the Workplace Relations Act 1996, 'Matters referred by Victoria. The provisions in Part XV are based on the reference of certain matters to the Commonwealth Parliament by Part 2 of the Commonwealth Powers (Industrial Relations) Act 1996 (Vic.), which was proclaimed to commence on 17 December 1996.

The matters referred by the Victorian Parliament (subject to a number of exclusions, set out below) are: conciliation and arbitration for the prevention and settlement of industrial disputes within the limits of Victoria. agreements about matters pertaining to the relationship between an employer or employers in Victoria and an employee or employees in Victoria. minimum terms and conditions of employment for employees in the State. termination of employment at the initiative of the employer; freedom of association; settling and adjusting minimum wages for employees in Victoria who are in a work classification declared under the Employee Relations Act 1992; the exercising by the AIRC of powers in relation to industrial matters or disputes which arose before the commencement of the State referral legislation. The matters excluded are matters pertaining to. the number, identity, appointment and discipline of employees in the State public sector (this does not apply to terms and conditions of appointment of such employees, nor to termination of their employment for disciplinary reasons); the number or identity of employees in the public sector dismissed, or to be dismissed, on grounds of redundancy; certain specified subject matters (workers' compensation. superannuation. occupational health and safety. apprenticeship; long service leave; public holidays; equal opportunity), but only to the extent that they may not, under the Workplace Relations Act 1996 as at 30 November 1996, be included in agreements or awards (in other words, the limitation on the referrals concerning these subject matters will only operate if the WR Act changes how they may be included in awards or agreements); common rules; Ministers, MPs, judicial officers or members of administrative tribunals; statutory office holders; the number, identity, appointment (other than matters pertaining to terms and conditions of appointment not referred to in the paragraph), probation, promotion, transfer from place to place or position to position, physical or mental fitness, uniform, equipment, discipline or termination of employment of law enforcement officers; holders of senior executive offices in State departments; persons employed at the higher managerial levels in the State public sector; ministerial assistants or ministerial advisers; Parliamentary officers; transfer or redundancy of employees of a body restructured by a Victorian Act; and, duties of employees in situations of emergency or in relation to vital industries or projects declared to be such under a Victorian Act.

Schedule 1 to the Workplace Relations and Other Legislation Amendment Act (No. 2) 1996, in reliance on the powers of the Commonwealth Parliament in respect of these referred matters, gives additional operations in Victoria to various existing provisions of the Workplace Relations Act 1996, and introduces new provisions which generally provide for the continuation of certain matters under the Employee Relations Act 1992 (Vic.) (the operative provisions of which, apart from those concerning long service leave, are to be repealed with effect from 1 January 1997). The matters which will be continued concern minimum conditions of employment, employment agreements entered into under the Employee Relations Act, and associations which were recognised under that Act.

The purpose of the proposed Regulations is to give effect to various matters which are necessary or convenient to be prescribed for these purposes, including:

* to require employers to keep records relating to employees employed under employment agreements (Regulations 3 and 4);

* to require employers to provide pay slips to employees in Victoria (not excluded from the scope of the matters referred) who are employed otherwise than under an award, a certified agreement, an Australian workplace agreement, or an 'old IR agreement' (a term defined in the Workplace Relations Regulations to encompass former certified agreements and enterprise flexibility agreements) [pay slips for employees in Victoria employed under these types of instruments will be covered by existing regulations] (Regulations 5 and 6);

* to prescribe particular Victorian laws, for the purposes of a limitation on the making of awards and orders in relation to Victorian public sector employment, under the additional operation in Victoria of provisions of the Workplace Relations Act relating to industrial disputes (Regulation 7);

* to prescribe inspectors as persons able to bring actions for contraventions of penalty provisions in new Part XV of the Act (Regulation 7); and

* to provide for modifications of the Act in relation to associations which were recognised under the Employee Relations Act 1992 (Vic.) (Regulation 7). Details of the proposed Regulations are attached.

ATTACHMENT

DETAILS OF THE WORKPLACE RELATIONS REGULATIONS (AMENDMENT)

Regulation 1: Commencement

Regulation 1. 1 provides that the regulations commence on the same day as item 3 of Schedule 1 to the Workplace Relations and Other Legislation Amendment Act (No 2) 1996 (the Amendment Act).

Regulation 2: Amendment

This is a formal provision, which provides that the regulations amend the Workplace Relations Regulations (the existing regulations).

Regulation 3: Part 9A (Records by employers)

Regulation 3.1 inserts a new sub-heading "Division 1 - Employees under award etc". This new heading is consequent upon the proposed changes made by regulation 4.

Regulation 4: New Division 2 of Part 9A

Section 3 53A of the Workplace Relations Act 1996 (the WR Act) enables the regulations to make provision in relation to keeping of records by certain employers and provision of pay slips to certain employees.

New section 532, to be inserted by item 4 of Schedule 1 to the Amendment Act, gives section 3 53 A additional effect as though it included references to employees covered by employment agreements within the meaning of Part XV of the WR Act (as inserted by the Amendment Act).

Regulation 4.1 provides record keeping requirements which replicate those under the Employee Relations Act 1992 (Vie.) (the ER Act (Vic.)) up to 31 December 1996. The record keeping requirement only relates to employees covered by an employment agreement.

A breach of a requirement of new Division 2 of Part 9A may result in a penalty of not more than 10 penalty units (currently $ 1,000).

Regulation 5: Part 9B (Pay slips)

Regulation 5.1 inserts a new sub-heading "Division 1 - Employees under award etc". This new heading is consequent upon changes made by proposed regulation 6.

Regulation 6: New Division 2 of Part 9B

New section 514, to be inserted by item 4 of Schedule 1 to the Amendment Act, enables the making of regulations to require provision of pay slips for employees generally in Victoria.

Regulation 6.1 inserts new regulation 132E which provides pay slip requirements which replicate those under the ER Act (Vie.) up to 1 December 1997. The pay slip requirement applies to all employees in Victoria not covered by an award, a certified agreement, an AWA of an old IR agreement (as now defined in the Workplace Relations Regulations).

A breach of a requirement of new Division 2 of Part 9B may result in a penalty of not more than 10 penalty units (currently $1,000).

Regulation 7: New Part 9C

Subsection 493(2) of the WR Act (to be inserted by the Amending Act) provides that the regulations may prescribe Victorian laws so that they prevail to the extent of any inconsistency over an award or order made in respect of an industrial dispute concerning employment in the Victorian public sector under the extended operation of the Act. This will not affect the operation of the WR Act apart from its extended operation.

Regulation 132F provides that the Police Regulation Act 1958 (Vic.) and all regulations, standing orders and instructions made or issued under that Act are prescribed for the purposes of subsection 493(2).

Regulation 132G provides that for the purposes of enforcement of penalty provisions pursuant to paragraph 53 3 (3)(c) of the WR Act (to be inserted by the Amendment Act), an inspector is a prescribed person.

Regulation 132H provides that for the purposes of sections 535 and 536, the WR Act is modified as set out in Schedule 7 of the regulations; to be introduced by proposed regulation

Section 535 of the WR Act (to be inserted by the Amendment Act) allows for the modification, by regulation, of the effect of Part IX of the WR Act (which concerns registered organisations of employers and employees) and related provisions in relation to one or more of the following:

* the making of transitional registration applications by recognised associations (as defined by section 489 of the WR Act (to be inserted by the Amendment Act));

* the grant of transitional registration applications made by recognised associations;

* the registering of recognised associations as a result of making transitional registration applications.

Section 536 of the WR Act (to be inserted by the Amendment Act) allows, in relation to recognised associations that are registered under Part IX as a result of making transitional registration applications or organisations or which recognised associations are a part, or both, for the modification, by regulation, of the effect of:

* Part IX and related provisions of the WR Act; or

* provisions of the WR Act or Workplace Relations Regulations that refer or otherwise relate to the entitlement of organisations to represent the industrial interests of members.

Regulation 8: New Schedule 7

Regulation 8 inserts new Schedule 7. This sets out modifications of the Act which will apply in relation to recognised associations, other than those already registered, to the exclusion of provisions relating to organisations otherwise applying.

Item 1 of Schedule 7 - Insertion of new section 187AAA

Subsection 187AAA(I) provides that the provisions of Part IX of the WR Act and any other provisions of the WR Act that refer to or otherwise relate to the registration of organisations or the entitlement of organisations to represent the industrial interests of members do not apply to recognised associations (as defined in section 489) that apply for, or are granted, transitional registration under Part IX. Where an association is registered, or is part of an organisation that is registered, under the WR Act, the provisions of the WR Act may still apply.

Subsection 187AAA(2) provides that transitionally registered associations are not prevented from making an application in accordance with Part IX (other than Division 13) for registration as an organisation.

Item 2 of Schedule 7 - Insertion of new Division 13 of Part IX

New section 293A - Interpretation

This section inserts definitions of two terms used in Division 13.

The definition of 'relevant date' means the earlier of the day of commencement of item 3 of Schedule 1 to the Act., and the day of commencement of Part 3 of the Victorian Commonwealth Powers (Industrial Relations) Act 1996.

The term 'transitionally registered association' is defined to mean an association that is taken to be transitionally registered in accordance with new section 293C.

New section 293B - Transitional registration application by recognised association

Subsection 293B(1) provides that if a recognised association makes a transitional registration application in accordance with subsection (2) and the Registrar is reasonably satisfied that the association was a recognised association immediately before the relevant date, the registrar must, by written instrument, grant the application and record the fact that he or she is satisfied that the association was a recognised association before the relevant date. The registrar must also give a copy of the instrument to the association.

Subsection 293B(2) outlines the material which must accompany a transitional registration application.

New section 293C - Transitional registration

This section provides that a recognised association is taken to be transitionally registered under the WR Act when the Registrar makes a written instrument under paragraph 293B(1)(c).

New section 293D - End of transitional registration

This section provides that the transitional registration of a recognised association is to end in any of the following circumstances:

* if a registrar is satisfied that the association no longer exists; or

* a period of 2 years after commencement of Division 13 has expired; and the association has not made an application in accordance with Part IX of the WR Act (other than under Division 13) for registration as an organisation; or

* the association has made an application in accordance with Part IX (other than under Division 13) for registration as an organisation and the application has been decided.

New section 293E - Applications under section 501

This section provides that a transitionally registered association is able to apply under section 501 of the WR Act (to be inserted by the Amendment Act) for the setting or adjusting of a minimum wage. However, a transitionally registered organisation is only able to make such an application:

* in the case of an association of employers, in relation to a work classification in the industrial sector in relation to which the association was recognised under the ER Act (Vic.) immediately before the relevant date, and provided the minimum wage applies, or will apply, to employees of a member of the association;

* in the case of an association of employees, in relation to a work classification of employees in the industry sector or of the employer in relation to which the association was recognised under the ER Act (Vic.) immediately before the relevant date, and provided the minimum wage applies, or will apply, to a member of the association.

New section 293F - Dispute resolution provisions - section 520

Section 520 of the WR Act (to be inserted by the Amendment Act) provides that to maintain a requirement of the ER Act (Vic.), a dispute resolution process is deemed to be a part of any continuing employment agreement which lacks such a provision.

Section 293F provides that a transitionally registered association may submit a dispute or grievance for conciliation, or agree to submit a dispute to arbitration, under a provision included in an employment agreement under section 520 of the Act if the dispute or grievance relates to:

* an employee employed in an industry sector, or by an employer, in relation to which the transitionally registered association was recognised under the ER Act (Vic.) before the relevant date; or

* an employer in relation to which, or which an employer in an industry sector in relation to which, the transitionally registered organisation was recognised under the ER Act (Vic.) before the relevant date.

New section 293G - Recovery of penalties etc. - section 178

Sections 178 of the WR Act provides that where an organisation or person is bound an award, an order of the Commission or a certified agreement and breaches a term of the award, order or agreement, a penalty may be imposed by the Federal Court or, except in the case of a breach of a bans clause, by a court of competent jurisdiction,

Section 293G provides that section 178 applies to a transitionally registered organisation in relation to an employment agreement that binds

* an employee employed in an industry sector, or by an employer, in relation to which the transitionally registered association was recognised under the ER Act (Vic.) before the relevant date; or

New section 293H - Penalties - section 533

Section 533 of the WR Act (to be inserted by the Amendment Act) provides for enforcement of penalty provisions.

Section 293H provides that a transitionally registered association may make an application for an order imposing a penalty under subsection 533(1) in relation to a contravention of a penalty provision that relates to:

* an employee employed in an industry sector, or by an employer, in relation to which the transitionally registered association was recognised under the ER Act (Vic.) before the relevant date; or