EXPLANATORY STATEMENT
Select Legislative Instrument 2013 No. 181
Issued by the authority of the Minister for Workplace Relations
Subject - Coal Mining Industry (Long Service Leave) Legislation Amendment Act 2011
Coal Mining Industry (Long Service Leave) Legislation Amendment Regulation 2013 (No. 1)
Subitem 11(1) of Schedule 5 to the Coal Mining Industry (Long Service Leave) Legislation Amendment Act 2011 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by Schedule 5 to the Act, or necessary or convenient to be prescribed for carrying out or giving effect to Schedule 5 to the Act.
This regulation extends two timeframes associated with a review of former eligible employee long service leave records to better reflect the complexity and scale of the review.
The Act commenced on 1 January 2012. In part, the Act legislates entitlements under the portable long service leave scheme in the black coal mining industry which had previously been covered by awards or other industrial instruments. Schedule 5 to the Act (the transitional provisions) provides that certain periods of service undertaken by eligible employees and former eligible employees between 1 January 2000 and 31 December 2011 may be counted towards their long service leave accrual.
Schedule 5 to the Act provides for some timelines and dates by which certain administrative obligations are to be met. These dates may be changed by regulation.
The Coal Mining Industry (Long Service Leave) Amendment Regulation 2012 (‘the Principal Regulation’) changed certain deadlines in the Act, including when the Coal Mining Industry (Long Service Leave Funding) Corporation (‘the Corporation’) is required to notify former eligible employees about records that the Corporation has in relation to the employees’ long service leave entitlements (changed to 30 June 2013) and when the Corporation is required to seek actuarial advice about the sufficiency of the Coal Mining Industry (Long Service Leave) Fund (‘the Fund’) (September 2013).
The Corporation has received an unexpectedly high number of applications from former eligible employees under the Act, many of which lacked sufficient information for the Corporation to make a decision in relation to the application. Due to this, the Corporation has been unable to meet the 30 June 2013 deadline prescribed by the Principal Regulation.
The Corporation was consulted during the preparation of the Regulation. The Board of the Corporation consists of industry representatives and trade union representatives and is an appropriate body through which to consult relevant groups that may be affected by this Regulation.
A Statement of Compatibility with Human Rights has been completed for the Regulation, in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The Statement’s assessment is that the Regulation is compatible with human rights. A copy of the Statement is at attached.
The Act does not impose any conditions that need to be satisfied before the power to make the Regulation may be exercised.
The Regulation is 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 (OBPR ID: 15200).
The Regulation is taken to have commenced on 29 June 2013. This is to ensure that the Corporation has not breached the requirements of the Principal Regulation, which provides that the Corporation must notify former eligible employees by 30 June 2013. The long service leave entitlements of former eligible employees would not be affected by this regulation, nor by its retrospective effect.
Detailed outline – Item 1 of Schedule 1 to the Regulation
Subitem 7(2) of Schedule 5 to the Act provides that where the Corporation has made a calculation under item 3 of the Schedule (relating to the recognition of long service leave for former eligible employees), the Corporation must notify the person about the records it has relating to that person’s employment and qualifying service. The Corporation is to notify the person on or before 31 December 2012 or such later date prescribed by the regulations.
The Principal Regulation prescribed the date as 30 June 2013. The Regulation prescribes that the Corporation must provide the notification on or before 30 June 2014. A former eligible employee’s long service leave entitlements would not be affected by this amendment. However, the extension of the timeline for the Corporation allows the Corporation to seek further information from former eligible employees who have not provided sufficient information in their application to the Corporation in relation to their long service leave entitlements, which will provide for a fairer process for the former eligible employee.
Detailed outline – Item 2 of Schedule 1 to the Regulation
Subitem 10(1) of Schedule 5 to the Act provides that the Board of the Corporation must seek advice from an actuary as to whether the rate of payroll levy imposed (at the time the advice is given) would be adequate to ensure that the Fund will be sufficient to reimburse employers in accordance with the Employer Reimbursement Rules; and if not, the rate that would be so adequate. The Act provided that this advice must be sought in January 2013 or such later month before 1 January 2015 prescribed by the regulations. The Principal Regulation prescribed the date as September 2013.
The Regulation prescribes that the Corporation must seek the advice in September 2014. This is to allow the Board of the Corporation (and the actuary) to consider the sufficiency of the Fund in light of the impact on the Fund of the recognition by the Corporation of the long service leave entitlements of former eligible employees, following the completion of that recognition process by 30 June 2014.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Coal Mining Industry (Long Service Leave) Legislation Amendment Regulation 2013
(No. 1)
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The Coal Mining Industry (Long Service Leave) Legislation Amendment Regulation 2013 (No. 1) (the Regulation) changes the date by which the Coal Mining Industry (Long Service Leave) Corporation (the Corporation) must notify former eligible employees regarding the records that the Corporation has in relation to these employees’ long service leave entitlements and by which the Corporation must seek actuarial advice relating to the sufficiency of the Fund.
The Regulation amends clause 6 of the Coal Mining Industry (Long Service Leave) Legislation Amendment Regulation 2012 (the Principal Regulation) to provide that the Corporation must notify former eligible employees of the records the Corporation has in relation to these employees’ long service leave entitlements by 30 June 2014 (previously prescribed in the Principal Regulations as 30 June 2013).
A former eligible employee’s long service leave entitlements would not be affected by this amendment. However, the extension of the timeline for the Corporation allows the Corporation to seek further information from former eligible employees who have not provided sufficient information in their application to the Corporation in relation to their long service leave entitlements, which will provide for a fairer process for the former eligible employee.
The Regulation also amends clause 7 of the Principal Regulation to provide that the Corporation must seek actuarial advice as to the sufficiency of the Coal Mining Industry (Long Service Leave) Fund in September 2014 (previously prescribed in the Principal Regulations as September 2013). This is to allow the Board of the Corporation (and the actuary) to consider the sufficiency of the Fund in light of the impact on the Fund of the recognition by the Corporation of the long service leave entitlements of former eligible employees, following the completion of that recognition process by 30 June 2014.
Human rights implications
Article 7 of ICESCR
The Regulation supports the Amendment Act in its object, among others, of providing minimum entitlements and rights in respect of long service for eligible employees.
The Corporation has received an unexpectedly high number of applications from former eligible employees under the Act, many of which lacked sufficient information for the Corporation to make a decision in relation to the application. Due to this, the Corporation has been unable to meet the 30 June 2013 deadline prescribed by the Principal Regulation.
By extending the time available the Corporation to seek further information from former eligible employees where necessary to enable the Corporation to ensure that their records relating to long service leave entitlements for these employees are as accurate as possible, the Regulation promotes a person’s right to enjoyment of just and favourable conditions of work, and in particular, periodic holidays with pay, as contained in article 7 of the ICESCR.
To the extent that allowing the Corporation further time to notify former eligible employees of the records that the Corporation holds relating to these employees’ long service leave entitlements may negatively impact a person due to a delay in being notified about their records, the impact is minor as the person’s entitlements will not be affected by the change in deadline, even if the date of notification is delayed. Further, this is reasonable and necessary, as the Corporation requires more time to satisfactorily carry out its update of records.
Conclusion
This Legislative Instrument is compatible with human rights.
William Richard Shorten, Minister for Workplace Relations