Workplace Relations Regulations (Amendment) (Cth)

Statutory Rules 1996

No. 329 1

__________________

Workplace Relations Regulations 2(Amendment)

I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and under section 4 of the Acts Interpretation Act 1901, make the following Regulations under the Workplace Relations Act 1996.

Dated 20 December 1996.

 WILLIAM DEANE

 Governor-General

By His Excellency’s Command,

PETER REITH

Minister for Industrial Relations

____________

PART 1—PRELIMINARY

1.   Commencement

1.1   Part 1 commences on 31 December 1996.

1.2   Part 2 commences on the same day as Schedule 5 to the Workplace Relations and Other Legislation Amendment Act 1996.

1.3   Part 3 commences on the same day as Schedule 6 to the Workplace Relations and Other Legislation Amendment Act 1996.

1.4   Part 4 commences on the same day as Schedule 8 to the Workplace Relations and Other Legislation Amendment Act 1996.

1.5   Part 5 commences on the same day as Schedule 11 to the Workplace Relations and Other Legislation Amendment Act 1996.

1.6   Part 6 commences on the same day as Schedule 14 to the Workplace Relations and Other Legislation Amendment Act 1996.

1.7   Part 7 commences on the same day as Schedule 20 to the Workplace Relations and Other Legislation Amendment Act 1996.

2.   Amendment

2.1   The Workplace Relations Regulations are amended as set out in these Regulations.

PART 2—AMENDMENT COMMENCING ON THE SAME DAY AS SCHEDULE 5 TO THE WORKPLACE RELATIONS AND OTHER LEGISLATION AMENDMENT ACT 1996

3.   Regulation 26A (Review of awards by Commission—steps to remedy deficiency)

3.1   Omit the regulation.

PART 3—AMENDMENTS COMMENCING ON THE SAME DAY AS SCHEDULE 6 TO THE WORKPLACE RELATIONS AND OTHER LEGISLATION AMENDMENT ACT 1996

4.   Regulation 30A (Interpretation—Division 1)

4.1   Definition of “authorised leave” (subparagraph (b) (ii)):

Omit the subparagraph, substitute:

• “(ii)

  a certified agreement, an AWA, a State employment agreement or an old IR agreement; or”.

5.   Regulation 30F (Basic Principles)

5.1   Subregulation 30F (2):

Omit “under an award or under” substitute “under an award, a certified agreement, an AWA, a State employment agreement or”.

6.   Regulation 30G (Definitions)

6.1   Definition of “continuous service” (paragraph (b)):

Omit “an agreement certified by such a body; or”, substitute “a certified agreement, an AWA, a State employment agreement or an old IR agreement; or”.

6.2   Definition of “long adoption leave” (paragraph (a)):

Omit “or under an award, order or agreement);”, substitute “or under an award, an order, a certified agreement, an AWA or a State employment agreement);”.

6.3   Definition of “short adoption leave” (paragraph (a)):

Omit “or under an award, order or agreement);”, substitute “or under an award, an order, a certified agreement, an AWA or a State employment agreement);”.

PART 4—AMENDMENTS COMMENCING

ON THE SAME DAY AS SCHEDULE 8 TO THE WORKPLACE RELATIONS AND OTHER LEGISLATION AMENDMENT ACT 1996

7.   Part 5B (Promoting bargaining and facilitating agreements)

7.1   Omit the Part, substitute:

“PART 5B—CERTIFIED AGREEMENTS

Prescribed conditions of employment specified in prescribed Commonwealth laws (Act, s. 170LZ)

 “30ZE. (1) For the purposes of subsection 170LZ (4) of the Act:

• (a)

  the following laws are prescribed:

  • (i)

    the Public Service Act 1922;

  • (ii)

    the Public Service Regulations;

  • (iii)

    all determinations made under section 82D of the Public Service Act 1922; and

• (b)

  the following conditions of employment are prescribed:

  • (i)

    subject to subregulation (2), each condition of employment provided for in a provision of a law referred to in subparagraph (a) (i) or (ii) that is specified in Schedule 5;

  • (ii)

    each condition of employment provided for in the determinations referred to in subparagraph (a) (iii).

 “(2) If a condition of employment referred to in subparagraph (1) (b) (i) is provided for by a provision in relation to which a particular matter or circumstance is specified in Schedule 5, that condition of employment is prescribed only to the extent to which that condition relates to the matter or circumstance so specified.

Modification of certified agreement provisions applied as State law

 “30ZF.(1)For the purposes of paragraph (a) of the definition of ‘complementary State law’ in subsection 170NI (2) of the Act, the modifications in Schedule 6 are required in relation to the application, as a law of a State, of the certified agreement provisions of the Act.

Protected action—continuity of employment not affected

 “30ZG.(1) For the purposes of subsection 170ML (6) of the Act, prescribed purposes are the assessment of eligibility for, or the calculation of, any benefit or entitlement arising from the employees’ employment by the employer, including, in particular:

• (a)

  superannuation entitlements; and

• (b)

  authorised leave entitlements; and

• (c)

  remuneration and promotion as affected by seniority; and

• (d)

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

 “(2) In paragraph (1) (b), ‘authorised leave’ means leave authorised:

• (a)

  by the employer; or

• (b)

  by an award or order of a court or tribunal that has power to fix wages and other terms and conditions of employment; or

• (c)

  by a certified agreement, an AWA, a State employment agreement or an old IR agreement; or

• (d)

  by the employee’s contract of employment; or

• (e)

  by a law of the Commonwealth, or of a State or Territory.”.

8.   New Schedules 5 and 6

8.1   After Schedule 4, insert:

 “SCHEDULE 5 Regulation 30ZE

PRESCRIBED COMMONWEALTH LAWS AND PRESCRIBED CONDITIONS OF EMPLOYMENT

1.

Public Service Act 1922

• 1.1

  Subsection 28 (5)

• 1.2

  Subsection 29A (3)

• 1.3

  Section 47B

• 1.4

  Subsection 62 (10)—Direction to dismiss an officer from the Service under paragraph 62 (6) (b) of that Act.

• 1.5

  Subsection 63 (5)—Direction to dismiss an officer from the Service under paragraph 63(1) (d) of that Act.

• 1.6

  Section 63D—Direction to dismiss an officer from the Service under paragraph 62 (6) (b) or 63 (1) (d) of that Act.

• 1.7

  Section 63G—Direction to dismiss an officer from the Service under paragraph 62 (6) (b), 63 (1) (d), 63K (3A) (d) or 63L (3A) (d) of that Act.

• 1.8

  Section 63N

• 1.9

  Section 63P—Direction to dismiss an officer from the Service under paragraph 63K (3A) (d), 63L (3A) (d) or 63M (1) (d) of that Act.

• 1.10

  Subsection 76L (5)—Notice that an officer is to be retired under paragraph 76 L (3) (c) of that Act.

• 1.11

  Subsection 76L (5A)—Notice that an officer is to be retired under paragraph 76 L (3) (c) of that Act.

• 1.12

  Subsection 76L (7)—Notice that an officer is to be retired under paragraph 76 L (3) (c) of that Act.

• 1.13

  Section 76M—Notice under paragraph 76 L (3) (c) of that Act to an officer (other than an officer who has consented to being given such a notice).

• 1.14

  Subsection 76W (4)—Notice that an officer is to be retired under subsection 76W (1) of that Act.

• 1.15

  Subsection 76W (5)—Notice that an officer is to be retired under subsection 76W (1) of that Act.

• 1.16

  Section 76Z—Notice under subsection 76W (1) of that Act to an officer (other than an officer who has consented to being given such a notice).

2.

Public Service Regulations

• 2.1

  Subregulation 54 (2)

• 2.2

  Regulation 120—Notice that an officer is to be retired under paragraph 76L (3) (c) of the Public Service Act 1922.

• 2.3

  Regulation 120C—Notice that an officer is to be retired under subsection 76W (1) of that Act.

• 2.4

  Regulation 120D—Notice that an officer is to be retired under subsection 76W (1) of that Act.

• 2.5

  Regulation 141—Direction to dismiss an officer from the Service under paragraph 62 (6) (b) or 63 (1) (d), or subsection 63K (3), 63L (3) or 63M (1), of that Act.

• 2.6

  Regulation 166—Direction to dismiss an officer from the Service under paragraph 62 (6) (b) or 63 (1) (d), or subsection 63K (3), 63L (3) or 63M (1), of that Act.

• 2.7

  Regulation 167—Direction to dismiss an officer from the Service under paragraph 62 (6) (b) or 63 (1) (d), or subsection 63K (3), 63L (3) or 63M (1), of that Act.

“SCHEDULE 6 Regulation 30ZF

MANDATORY MODIFICATIONS OF PART VIB OF THE ACT AS APPLIED AS A LAW OF A STATE

101.   Section 170LH (What this Division covers)

101.1   Omit ‘who are constitutional corporations or the Commonwealth’, substitute ‘other than constitutional corporations or the Commonwealth’.

102.   Section 170LI (Nature of agreement)

102.1   Paragraph 170LI (1) (a):

Omit the paragraph, substitute:

• ‘(a)

  an employer other than a constitutional corporation or the Commonwealth; and’.”.

PART 5—AMENDMENTS COMMENCING

ON THE SAME DAY AS SCHEDULE 11 TO THE WORKPLACE RELATIONS AND OTHER LEGISLATION AMENDMENT ACT 1996

9.   Regulation 9 (Powers and functions of inspectors)

9.1   Paragraph 9 (1) (a):

Omit “any award”, substitute “an award, a certified agreement or an old IR agreement,”.

9.2   Subregulation 9 (2):

Omit “Where a person has failed to observe an award”, substitute “Subject to subregulation (5), where a person has failed to observe an award, a certified agreement, an old IR agreement”.

9.3   Subregulation 9 (3):

Omit “An inspector”, substitute “Subject to subregulations (4) and (5), an inspector”.

9.4   Subregulation 9 (3):

Omit “award”, substitute “award, a certified agreement or an old IR agreement,”.

9.5   Add at the end:

 “(5) Inspectors do not have any powers with respect to breaches of Parts IVA, VID and XA of the Act.”.

10.   Regulation 32A (Recovery of small claims under award or order—maximum amount)

10.1   Omit the regulation, substitute:

Recovery of small claims under award, order, AWA or certified agreement—maximum amount

 “32A.The prescribed amount for the purposes of paragraph 179D (2) (a) of the Act is $10,000.”.

11.   Regulation 131A (Records relating to employees—section 353A of the Act)

11.1   Subregulation 131A (1):

Omit the subregulation, substitute:

 “(1) Subject to subregulation (1A),an employer who employs an employee under an award, a certified agreement, an AWA or an old IR agreement, must make, or cause to be made, a record in accordance with this Part.

Penalty: $1,000.

 “(1A) Subregulation (1) does not apply if:

• (a)

  a certificate under regulation 131P applies in relation to the award, certified agreement or old IR agreement under which the employer employs the employee; or

• (b)

  a certificate under regulation 131PA applies in relation to the AWA under which the employer employs the employee.”.

12.   Regulation 131B (Records to show whether award conditions complied with)

12.1   Omit the regulation, substitute:

Records to show whether relevant conditions complied with

 “131B. (1)A record that relates to an employee employed under an award, a certified agreement or an old IR agreement must be in a condition that allows an inspector to determine whether the conditions of that award, certified agreement or old IR agreement are being complied with in relation to the employee.

 “(2)A record that relates to an employee employed under an AWA must be in a condition that allows an authorised officer to determine whether the conditions of that AWA are being complied with in relation to the employee.”.

13.   Regulation 131D (Contents of records—general)

13.1  Paragraph 131D (d):

Omit “award”, substitute “award, AWA, certified agreement or old IR agreement”.

13.2   Paragraph 131D (e):

Omit “award;”, substitute “award, AWA, certified agreement or old IR agreement;”.

13.3   Paragraph 131D (f) (first occurring):

Omit “award”, substitute “award, AWA, certified agreement or old IR agreement”.

13.4   Paragraph 131D (f) (second occurring):

Omit the paragraph, substitute:

• “(fa)

  whether the employee’s employment under the award, AWA, certified agreement or old IR agreement is:

  • (i)

    permanent; or

  • (ii)

    temporary; or

  • (iii)

    casual; and”.

14.   Regulation 131L (Inspection and copying of records)

14.1   Paragraphs 131L (1) (b) and (c):

Omit the paragraphs, substitute.

• “(b)

  an inspector (except in relation to an employee employed under an AWA); or

• (c)

  an authorised officer in relation to an employee employed under an AWA.”.

[NOTE: The following note should be inserted after subregulation 131L (1):

“[NOTE: Division 11A of Part IX of the Act deals with a registered organisation’s right to inspect records in relation to employment.]”.]

15.   New regulation 131PA

15.1   After regulation 131P, insert:

AWA provisions relating to records

 “131PA. (1) The Employment Advocate may issue a certificate stating that an AWA complies with this Part if the Employment Advocate is satisfied that the AWA contains a condition for the keeping of records that are reasonably comparable to records of the kind mentioned in regulation 131A.

 “(2) The Employment Advocate may issue a certificate:

• (a)

  on his or her own motion; or

• (b)

  at the request of the relevant employer.

 “(3) A certificate applies to an AWA only if the employer keeps records in accordance with the AWA.

 “(4) The issue by the Employment Advocate of a certificate under subregulation (1) is a prescribed function for the purposes of paragraph 83BB (1) (j) of the Act.”.

16.   Regulation 131Q (“Records”—extended meaning)

16.1   Regulation 131Q:

Omit the regulation, substitute:

“Records”—extended meaning

 “131Q.In regulations 131K, 131L, 131M and 131N, ‘record’ is taken to include:

• (a)

  a record kept under a condition of an award, a certified agreement or an old IR agreement if a certificate under regulation 131P applies to that award, certified agreement or old IR agreement; and

• (b)

  a record kept under a condition of an AWA if a certificate under regulation 131PA applies to the AWA.”.

17.   Regulation 132A (Pay slips—subsection 353A (2) of the Act)

17.1   Subregulation 132A (1):

Omit the subregulation, substitute:

 “(1) Subject to subregulation (1A),an employer who employs an employee under an award, a certified agreement, an AWA or an old IR agreement must issue to the employee a written pay slip relating to each payment by the employer of an amount to the employee as remuneration within 1 day of the payment to which the pay slip relates being made to the employee.

 “(1A) Subregulation (1) does not apply if:

• (a)

  a certificate under regulation 132C applies in relation to the award, certified agreement or old IR agreement under which the employer employs the employee; or

• (b)

  a certificate under regulation 132CA applies in relation to the AWA under which the employer employs the employee.”.

18.   Regulation 132C (Award provisions relating to pay slips)

18.1  Subregulation 132C (1):

Omit “an award complies with this Part if the Commission is satisfied that the award”, substitute “an award, a certified agreement or an old IR agreement complies with this Part if the Commission is satisfied that the award, certified agreement or old IR agreement”.

18.2   Paragraph 132C (2) (b):

Omit “award.”, substitute “award, certified agreement or old IR agreement.”.

18.3   Subregulation 132C (3):

Omit the subregulation, substitute:

 “(3)A certificate applies to an award, a certified agreement or an old IR agreement only if the employer issues pay slips in accordance with that award, certified agreement or old IR agreement.”.

19.   New regulation 132CA

19.1  After regulation 132C, insert:

AWA provisions relating to pay slips

 “132CA.(1)The Employment Advocate may issue a certificate stating that an AWA complies with this Part if the Employment Advocate is satisfied that the AWA requires:

• (a)

  a pay slip to be issued with, or a soon as practicable before or after, each payment to which the pay slip relates; and

• (b)

  the issue of pay slips that are reasonably comparable to pay slips containing particulars specified in regulation 132B.

 “(2) The Employment Advocate may issue a certificate:

• (a)

  on his or her own motion; or

• (b)

  at the request of an employer who employs an employee under the AWA.

 “(3) A certificate applies to an AWA only if the employer issues pay slips in accordance with the AWA.

 “(4) The issue by the Employment Advocate of a certificate under subregulation (1) is a prescribed function for the purposes of paragraph 83BB (1) (j) of the Act.”.

20.   Further amendments

20.1   Amendments as follows:

Provision amended	Omit	Substitute
Regulation 131E	award	award, AWA, certified agreement or old IR agreement
Regulation 131F	award	award, AWA, certified agreement or old IR agreement
Regulation 131G	award	award, AWA, certified agreement or old IR agreement
Regulation 131H	award	award, AWA, certified agreement or old IR agreement
Subregulation 131P (1)	award complies	award, a certified agreement or an old IR agreement complies
Subregulation 131P (1)	award contains	award, a certified agreement or an old IR agreement contains
Paragraph 132B (1) (b)	award	award, AWA, certified agreement or old IR agreement
Paragraph 132B (1) (l)	award	award, AWA, certified agreement or old IR agreement

PART 6—AMENDMENTS COMMENCING ON

THE SAME DAY AS SCHEDULE 14 TO THE WORKPLACE RELATIONS AND OTHER LEGISLATION AMENDMENT ACT 1996

21. New

regulation 47A

21.1   After regulation 47, insert:

Hearing in relation to alteration of rules—breach of undertaking

 “47A. (1) For the purposes of subsection 203A (2) of the Act, the designated Presidential Member must, for the purposes of giving the organisations mentioned in that subsection an opportunity to be heard on a matter:

• (a)

  fix a time and place for a hearing on the matter; and

• (b)

  cause each organisation to be given, not less than 7 days before the time so fixed, a notice in writing:

  • (i)

    identifying the breach of undertaking and the resulting overlap between the eligibility rules of the 2 organisations; and

  • (ii)

    specifying the time and place fixed for the hearing; and

  • (iii)

    notifying the organisation of its right to be heard on the matter and to make submissions, in accordance with subregulation (2), relating to the matter.

 “(2) Each organisation may make submissions relating to the matter to the Presidential Member by either, or both, of the following:

• (a)

  lodging with the Industrial Registry, not less than 2 days before the day fixed for the hearing, written submissions relating to the matter; or

• (b)

  appearing at the hearing and making oral submissions to the Presidential Member.

 “(3) At the hearing, the designated Presidential Member may direct the manner in which the hearing is to proceed and may, after hearing both organisations:

• (a)

  determine the matter without further delay; or

• (b)

  adjourn the proceedings to a later day; or

• (c)

  with the agreement of both organisations, determine the matter on a later day without further hearing.”.

22.   New regulation 107A

22.1   After regulation 107, insert:

Circumstances in which Registrar may conduct other investigations (Act, s. 280A)

 “107A. For the purposes of section 280A of the Act, the Registrar may, in relation to an organisation, investigate a matter referred to in that section if:

• (a)

  the matter is disclosed in a report to a Registrar under subsection 276 (5) of the Act by an auditor of the organisation alleging a breach of the Act by the organisation and the Registrar considers that it should be investigated; or

• (b)

  a complaint in relation to the matter has been made to a Registrar by an officer of the organisation and the Registrar, after consulting the organisation, considers that there are reasonable grounds for conducting an investigation into the matter.”.

23.   New regulations 109A, 109B and 109C

23.1   After regulation 109, insert:

Applications for permits to enter and investigate premises

(Act, s. 285A (1))

 “109A. For the purposes of subsection 285A (1) of the Act, an application for a permit made by an organisation, or a branch of an organisation, must:

• (a)

  be in writing; and

• (b)

  be signed by a member of the committee of management of the organisation or of the branch of that organisation, as the case requires; and

• (c)

  state the name of the person in whose name the certificate is to be issued; and

• (d)

  state whether that person is an officer or employee of the organisation or branch, as the case requires; and

• (e)

  if the person is an officer of the organisation or branch, state the office held by that person.

Prescribed form of permit (Act, s. 285A (1))

 “109B. For the purposes of subsection 285A (1) of the Act, the prescribed form of a permit is Form 12.

Application for revocation of a permit (Act, s. 285A (3))

 “109C. (1) For the purposes of subsection 285A (3) of the Act, an application for the revocation of a permit may be made by:

• (a)

  an employer claiming that:

  • (i)

    the employer, or an employee of the employer, has been hindered or obstructed by the holder of the permit; or

  • (ii)

    the holder of the permit has otherwise acted in an improper manner; or

• (b)

  an employer organisation claiming that:

  • (i)

    one of its members, or an employee of one of its members, has been hindered or obstructed by the holder of the permit; or

  • (ii)

    the holder of the permit has otherwise acted in an improper manner.

 “(2) An application must:

• (a)

  be in writing; and

• (b)

  be signed by the applicant; and

• (c)

  state the grounds on which the application is made.”.

24.   Schedule 1

24.1   Add at the end:

“FORM 12

Regulation 109B

Workplace Relations Act 1996

PERMIT TO ENTER AND INSPECT PREMISES

This permit is issued to (name), an officer/employee* of (name of organisation or branch).

The holder of this permit is entitled, while the permit is in force, to exercise the powers and functions given to the holder of this permit by Division 11A of Part IX of the Workplace Relations Act 1996.

The permit remains in force for 3 years from and including the date of this permit, unless, before the end of that period, it is revoked or the person named in the permit ceases to be an officer or employee of the organisation or branch named in the permit, whichever occurs first.

Dated 19 

 *Deputy/Industrial Registrar

*Omit if not applicable

[NOTE: This permit must be returned to the Registrar within 14 days after it expires or is revoked.]”.

PART 7—AMENDMENT COMMENCING

ON THE SAME DAY AS SCHEDULE 20 TO THE WORKPLACE RELATIONS AND OTHER LEGISLATION AMENDMENT ACT 1996

25.   Regulation 32 (Prescribed Act—subsections 177 (3) and (5) of the Act)

25.1   Omit the regulation.

NOTES

1. Notified in the Commonwealth of Australia Gazette on 24 December 1996.

2. Statutory Rules 1989 No. 12 as amended by 1989 Nos. 107 and 288; 1990 Nos. 328 and 461; 1991 Nos. 9, 11, 73, 137 and 366; 1992 Nos. 81, 139, 158, 232, 274, 339, 351, 357, 435 and 436; 1993 Nos. 22, 23, 41, 61, 128 and 330; 1994 Nos. 68, 79, 185, 244, 287 and 386; 1995 Nos. 376 and 434; 1996 Nos. 80, 168, 269, 307 and 328.