EXPLANATORY STATEMENT
Select Legislative Instrument 2011 No. 243
Issued by the authority of the Minister for Tertiary Education, Skills, Jobs and Workplace Relations
Subject - Coal Mining Industry (Long Service Leave Funding) Act 1992
Coal Mining Industry (Long Service Leave Funding) Amendment Regulations 2011 (No. 1)
Section 54 of the Coal Mining Industry (Long Service Leave Funding) Act 1992 (the Funding Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Funding Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Funding Act.
The Coal Mining Industry (Long Service Leave) Legislation Amendment Act 2011 (the Amendment Act) will commence on 1 January 2012. The Amendment Act will reform the long service leave arrangements in the black coal mining industry by amending the following legislation:
- the Funding Act;
- Coal Mining Industry (Long Service Leave) Payroll Levy Act 1992;
- Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992; and
- Coal Mining Industry (Long Service Leave Funding) Amendment Act 2009.
This legislation, together with the Coal Mining Industry (Long Service Leave Funding) Regulations 1993 (the Principal Regulations) and the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Regulations 1993, establishes a statutory scheme for portable long service leave in the black coal mining industry.
These regulations rename the Principal Regulations as the Coal Mining Industry (Long Service Leave) Administration Regulations 1993 in line with the renaming of the Funding Act as the Coal Mining Industry (Long Service Leave) Administration Act 1992 (the Administration Act). These regulations also amend the Principal Regulations to update references to the names of the Administration Act and Principal Regulations.
These regulations also amend the Principal Regulations to prescribe the categories of employees who are able to enter into a waiver agreement.
The Administration Act provides that qualifying service is a period when an employee is an eligible employee of one or more employers, although subsection 39A(2) of the Administration Act provides that certain specified periods will not count as qualifying service. Under 39A(2)(d), a period in which a waiver agreement is in effect between the employee and an employer is not a period of qualifying service.
Section 39B of the Administration Act provides that, in lieu of accumulating an entitlement to long service leave, a prescribed employee may make a waiver agreement with their employer which will entitle the employee to additional remuneration or superannuation (or a combination of both) in lieu of an entitlement to long service leave.
These regulations prescribe the following categories of employees as able to make a waiver agreement for the purposes of section 39B of the Act:
- an eligible employee who is at least 55 and has no qualifying service for the purposes of section 39A of the Administration Act;
- an eligible employee who is at least 55 and has at least 8 years of qualifying service for the purposes of section 39A of the Administration Act;
- an eligible employee who is a manager of a corporation that is an employer of eligible employees in the black coal mining industry;
- an eligible employee who is a senior professional employee engaged in the management of a corporation that is an employer of eligible employees in the black coal mining industry;
- an eligible employee whose annual salary (including allowances) in 2012 is at least $162,000 and in a subsequent year, $162,000 as adjusted by the annual rate of the Consumer Price Index for 2012 and then for each completed year (if any) after 2012; or
- an eligible employee who is employed under an under-graduate placement or work training placement.
We have undertaken extensive consultations on the preparation of the Act and these Regulations with the Industry Working Party, which is comprised of the NSW Minerals Council Limited, the Queensland Resources Council, the Construction, Forestry, Mining and Energy Union – Mining and Energy Division, the Electrical Trades Union, the Australian Manufacturing Workers Union, the Association of Professional Engineers, Scientists and Managers Australia, the NSW Colliery Officials Association and the Mine Managers Association of Australia.
The Funding Act does not impose any conditions that need to be satisfied before the power to make the proposed Regulations may be exercised.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Office of Best Practice Regulation advised that a Regulation Impact Statement was not required.
The Regulations commence 1 January 2012.
Overview
The Coal Mining Industry (Long Service Leave Funding) Amendment Regulations 2011 (No. 1) were enacted to amend the existing framework governing long service leave arrangements within Australia's black coal mining industry. These regulations were introduced to address the need for modernising and refining the long service leave provisions within this sector, in alignment with the Coal Mining Industry (Long Service Leave) Legislation Amendment Act 2011. The objective of these amendments is to ensure that the statutory scheme for portable long service leave remains effective and relevant, while also providing clarity and specificity regarding the categories of employees eligible to enter into waiver agreements under the Coal Mining Industry (Long Service Leave) Administration Act 1992. The regulations were issued by the Minister for Tertiary Education, Skills, Jobs and Workplace Relations and are set to commence on 1 January 2012, reflecting a coordinated effort to update and streamline the legislative requirements for long service leave within the industry.
Scope and Application
The Coal Mining Industry (Long Service Leave Funding) Amendment Regulations 2011 (No. 1) apply to the black coal mining industry, specifically targeting employers and eligible employees within this sector. These regulations serve to amend existing provisions under the Coal Mining Industry (Long Service Leave) Administration Act 1992 and other related legislation, ensuring compliance with the updated framework for portable long service leave. The regulations are applicable nationally, as they concern the regulation of long service leave across the entire black coal mining industry in Australia. The regulations specify the categories of employees who can enter into a waiver agreement, which includes employees who are at least 55 years old with specific qualifying service conditions, managers and senior professionals within the industry, high-income earners, and those employed under specific training arrangements. These regulations also rename and update references in the Coal Mining Industry (Long Service Leave) Administration Regulations 1993 to align with the legislative amendments. The regulations themselves are subordinate instruments that extend and clarify the application of the primary Act, and they do not introduce new substantive laws but rather refine and update existing provisions to ensure continued relevance and effectiveness within the industry.
Key Provisions
The Coal Mining Industry (Long Service Leave Funding) Amendment Regulations 2011 (No. 1) establish a framework for the administration of long service leave (LSL) within the black coal mining industry. These regulations, which are issued under Section 54 of the Coal Mining Industry (Long Service Leave Funding) Act 1992, come into effect on 1 January 2012, aligning with the commencement of the Coal Mining Industry (Long Service Leave) Legislation Amendment Act 2011. The regulations are designed to update and refine the long service leave arrangements, ensuring they are current and effective in managing LSL entitlements for employees in the industry.
The primary sections of these regulations (Sections 3 and 4) rename the existing Coal Mining Industry (Long Service Leave) Administration Regulations 1993 as the Coal Mining Industry (Long Service Leave) Administration Regulations 1993 (Administration Regulations). This renaming follows the renaming of the Coal Mining Industry (Long Service Leave Funding) Act 1992 to the Coal Mining Industry (Long Service Leave) Administration Act 1992. Additionally, these regulations amend the existing Principal Regulations to reflect the new names and update references accordingly. They also introduce specific categories of employees who are eligible to enter into a waiver agreement with their employer, allowing them to forgo LSL entitlements in exchange for additional remuneration or superannuation.
These regulations impose several obligations on the parties involved. Employers and eligible employees must understand and comply with the updated criteria for entering into waiver agreements, which are outlined in the Administration Act. Employers are required to facilitate these agreements for eligible employees, ensuring they are aware of their rights and options under the legislation. Employees, on the other hand, must make informed decisions about whether to enter into a waiver agreement, considering their individual circumstances and the benefits of each option. The regulations also mandate that all parties adhere to the updated definitions and references within the amended legislation, ensuring consistency and clarity in the administration of LSL.
Breaches of the regulations may result in various consequences. While the specific offences, penalties, or civil/criminal consequences are not detailed within the explanatory statement, it is implied that failure to comply with the provisions of the Administration Act and the Administration Regulations could lead to legal actions. Potential penalties could include fines or other sanctions, although the exact penalties would be determined by the courts in the context of the breach. Ensuring compliance with these regulations is essential to avoid any adverse legal outcomes and to maintain the integrity of the LSL scheme within the black coal mining industry.