EXPLANATORY STATEMENT
Statutory Rules 1983 No 94
Conciliation and Arbitration Regulations (Amendment)
(Issued by the Authority of the Minister for Employment and Industrial Relations)
The amendments to the Conciliation and Arbitration Regulations are designed to take account of changes to the Act made by the Conciliation and Arbitration Amendment Act 1983. The Conciliation and Arbitration Amendment Act 1983 amended Part VIIIA of the Act which deals with the Amalgamation of Organizations, abolished the Industrial Relations Bureau by repealing Part VIA of the Act and made provision for the establishment of an Arbitration Inspectorate by providing for the appointment of Inspectors and for their powers and duties.
In general terms the amendments to Part VIIIA of the Act allow:
(i) proposals for alternative amalgamations to be submitted to the Industrial Registrar in conjunction with applications for amalgamation where 3 or more organizations are involved;
(ii) applications to the Australian Conciliation and Arbitration Commission for a declaration that a proposed amalgamation is in the public interest and in the industrial interests of their organizations;
(iii) for relaxed voting requirements in amalgamation ballots to apply where a declaration of the type referred to in the previous paragraph has been made;
(iv) for more up to date rolls of voters in all amalgamation ballots.
The regulations amend existing regulations and insert new regulations to deal with these changes.
The regulations dealing with amalgamations fall into two main categories:
(i) amendments and a new provision designed to reflect the use in the Conciliation and Arbitration Amendment Act. 1983 of the terms “alternative amalgamation”, “alternative provision” and “proposed amalgamation”. Amendments in this category are made to regulations 146A, 146B, 146C and 146D. The new provision is regulation 146M; existing regulation 146M is repealed; and
(ii) amendments and new provisions designed to accommodate variations to existing procedures and new procedures provided under the Conciliation and Arbitration Amendment Act 1983. Amendments and new provisions in this second category are as follows:
• Regulation 3 is designed to amend regulation 146B (which sets out requirements for schemes of amalgamation submitted pursuant to sub-section 158F) to require particulars to be provided of each alternative amalgamation where a proposed amalgamation contains an alternative provision;
• Regulation 4 is designed to amend regulation 146C (which sets out requirements for applications pursuant to section 158F) to impose certain further requirements where an application relates to a proposed amalgamation which contains an alternative provision;
• Regulation 5 inserts new regulation 146CA which provides for applications under section 158FA and new regulation 146CB which requires the publication of a notice where the Conciliation and Arbitration Commission has declared that an amalgamation is in the public interest;
• Regulation 6 is designed to amend regulation 146D which sets out requirements for notices published in the Gazette pursuant to section 158G to provide for applications pursuant to section 158FA.
Regulation 7, which does not fall into either category, amends regulation 146E (which sets out the requirements for making an objection pursuant to section 158H) to correct an error in the terminology of the regulation.
As a consequence of the abolition of the Industrial Relations Bureau an amendment to regulation 162A of the Conciliation and Arbitration Regulations is necessary. Regulation 162A provides:
“An employer who desires to pay an amount of money to the Commonwealth in accordance with section 124 of the Act may pay the amount to a member of the staff of the Bureau who is a Collector of Public Moneys.”
Sub-section 124(1) of the Act provides:
“Where
(a) an employee has left the employment of an employer without having been paid an amount to which he is entitled under an order or award; and
(b) the employer is unable to make payment of that amount because the whereabouts of the employee are unknown to him,
the employer may pay that amount to the Commonwealth.”
Regulation 9 amends regulation 162A by deleting the reference to the Bureau and substituting the term “an officer of the Department”.
Overview
The Conciliation and Arbitration Regulations (Amendment) Statutory Rules 1983 No 94, issued by the Authority of the Minister for Employment and Industrial Relations, were enacted to address the changes introduced by the Conciliation and Arbitration Amendment Act 1983. The Amendment Act altered the framework for amalgamations of organisations, abolished the Industrial Relations Bureau, and established an Arbitration Inspectorate. These amendments necessitated corresponding changes to the regulations governing these processes. The policy objective of these amendments was to streamline and modernise the procedures for amalgamations, thereby facilitating more efficient and fair industrial relations practices. The regulations introduced new provisions and amended existing ones to align with the new legal landscape, ensuring that the processes for amalgamation, applications, declarations, and voting requirements were updated to reflect the changes in the law.
The amendments encompass several key areas. Firstly, they introduce the concept of "alternative amalgamations" and establish new requirements for schemes of amalgamation, applications, and declarations where such alternatives are involved. Secondly, they reflect the relaxed voting requirements for amalgamation ballots when a declaration of public and industrial interest has been made. Thirdly, they incorporate provisions for the publication of notices regarding amalgamations declared to be in the public interest. Lastly, the regulations also address the administrative changes resulting from the abolition of the Industrial Relations Bureau, ensuring that processes for payments to the Commonwealth are correctly aligned with the new structures. These amendments collectively aim to enhance the clarity, efficiency, and fairness of the amalgamation process within the Australian industrial relations system.
Scope and Application
The Conciliation and Arbitration Regulations (Amendment) Statutory Rules 1983 No 94 apply to the amendments made by the Conciliation and Arbitration Amendment Act 1983, which primarily affects the processes and procedures for amalgamations of organisations under the Conciliation and Arbitration Act 1904. This legislation applies to organisations and employers who are involved in amalgamation processes and the Industrial Relations Bureau, although the Bureau has been abolished by the Amendment Act, and the Department of Employment and Industrial Relations is established in its place. The scope of the regulations is Commonwealth in nature, aligning with the federal jurisdiction of the Act. The amendments do not explicitly state exclusions or thresholds, but they do introduce new procedures and requirements for amalgamation proposals, including the ability to submit alternative amalgamation proposals to the Industrial Registrar, the relaxed voting requirements for amalgamation ballots under certain conditions, and updated voter rolls for these ballots. Additionally, the regulations include provisions for the payment of money to the Commonwealth by employers in specific circumstances where employees are owed amounts but cannot be located, now directing payments to an officer of the Department rather than the abolished Bureau. The application of the Act and its regulations is further extended or restricted through subordinate instruments as necessary to implement the changes introduced by the Amendment Act.
Key Provisions
The Conciliation and Arbitration Regulations (Amendment) address several significant changes introduced by the Conciliation and Arbitration Amendment Act 1983. Section 1 of the amendment modifies the process for amalgamations by allowing proposals for alternative amalgamations to be submitted alongside applications for amalgamation when three or more organisations are involved (reg. 146A). Section 2 introduces the requirement for applicants to submit details of each alternative amalgamation where a proposed amalgamation includes an alternative provision (reg. 146C). Furthermore, section 3 outlines the new procedures for applying to the Australian Conciliation and Arbitration Commission for a declaration that a proposed amalgamation is in the public interest and in the industrial interests of the organisations involved (reg. 146CA). Section 4 allows for relaxed voting requirements in amalgamation ballots if such a declaration has been made (reg. 146D). Finally, section 5 ensures that more current rolls of voters are used in all amalgamation ballots (reg. 146D).
The regulations impose specific obligations on the parties involved in amalgamations. Employers and organisations must submit detailed schemes of amalgamation, including any alternative amalgamations, to the Industrial Registrar (reg. 146A). When making an application for a declaration regarding the public interest and industrial interests of a proposed amalgamation, they must also provide particulars of each alternative amalgamation if applicable (reg. 146C). Furthermore, they are required to publish notices in the Gazette when the Conciliation and Arbitration Commission declares that an amalgamation is in the public interest (reg. 146CB). Employers also have the obligation to pay any outstanding amounts owed to employees directly to the Commonwealth if they cannot locate the employee (reg. 162A).
The Conciliation and Arbitration Regulations (Amendment) also outline specific consequences for non-compliance. Although the amendment does not explicitly mention penalties, failure to adhere to the prescribed procedures for amalgamations, including the submission of required details and timely publication of notices, may lead to legal challenges or invalidation of the amalgamation process. Moreover, the omission of required details in applications could result in the application being dismissed by the Commission. The abolition of the Industrial Relations Bureau and the corresponding amendment to regulation 162A ensures that employers must now direct payments to the Commonwealth through an officer of the Department, reflecting the restructuring within the regulatory framework.
In conclusion, the Conciliation and Arbitration Regulations (Amendment) introduce a comprehensive set of procedures and requirements for amalgamations, reflecting the legislative changes made by the Conciliation and Arbitration Amendment Act 1983. These amendments ensure that the processes for amalgamations are transparent, inclusive of alternative proposals, and subject to public interest considerations. The regulations impose clear obligations on employers and organisations to submit detailed and accurate information, ensuring that the amalgamation process is conducted in a lawful and orderly manner. While the amendment does not specify penalties for non-compliance, the importance of adhering to the outlined procedures is underscored by the potential legal ramifications of failure to do so.