EXPLANATORY STATEMENT
Statutory Rules 1984 No. 22
Conciliation and Arbitration Regulations (Amendment)
(Issued by the Authority of the Minister for Employment and Industrial Relations)
The Conciliation and Arbitration Regulations (Amendment) commenced on the date of commencement of section 12 of the Conciliation and Arbitration Amendment Act (No. 2) 1983. Section 12 of that Act inserted section 49A in the Conciliation and Arbitration Act 1904. Section 49A provides:
“49A. (1) Subject to this section, where the Commission varies a term of an award, being a term that is a common rule of an industry in a Territory, the variation is, by force of this sub-section, a common rule of that industry in that Territory with effect from the date of effect of the variation.
(2) Before the Commission varies a term of a kind referred to in sub-section (1), the Registrar shall, in accordance with the regulations, give notice of the place where, and the time when, it is proposed to hear the matter involving that term.
(3) Where the Commission varies a term of a kind referred to in sub section (1), the Registrar shall forthwith, in accordance with the regulations, publish a notice inviting any person or organization interested and desiring to be heard to lodge, within 28 days after the date of the decision of the Commission, notice of objection to the variation binding that person or organization.
(4) If a notice of objection in relation to a variation is lodged by a person or organization in accordance with sub-section (3), the Commission shall hear the objection and, if it thinks fit, may declare that the variation is not binding on that person or organization.
(5) Where the Commission makes a declaration under subsection (4), the Registrar shall give notice of that fact in accordance with the regulations.
(6) A variation that is a common rule under this section -
(a) is not enforceable before the expiration of the period of 28 days referred to in sub-section (3); and
(b) if a notice of objection in relation to the variation is lodged by a person or organization in accordance with that sub-section — is not enforceable against that person or organization before the hearing of the objection is finally disposed of.”
Regulation 1 of the Conciliation and Arbitration Regulations (Amendment) provides a citation of the Principal Regulations.
Regulation 2 inserts regulations 36A, 36B and 36C in the Principal Regulations.
Regulation 36A provides for notices under sub-section 49A(2). Regulation 36A requires the notice to be in the form prescribed (Form 11AA), and to be served on certain organizations.
Regulation 36B provides for notices under sub-section 49A(3). Regulation 36B requires the notice to be in the form prescribed (Form 11AB) and to be published in the Gazette and a newspaper.
Regulation 36C provides for notices under sub-section 49A(5). Regulation 36C requires the notice to be in the form prescribed (Form 11AC) and to be published in the Gazette.
Overview
The Conciliation and Arbitration Regulations (Amendment) Statutory Rules 1984 No. 22, enacted by the Parliament of Australia, was introduced to address the procedural requirements for variations in industrial awards within the territories. This amendment aimed to ensure clarity and transparency in the notification process when the Australian Industrial Relations Commission (AIRC) varies a term of an award that becomes a common rule in an industry within a Territory. The policy objective of these regulations is to provide a structured and formal process for notifying relevant parties about proposed variations and subsequent objections, thereby upholding fairness and due process in industrial relations. The regulations mandate specific forms and methods for notices to be served on organisations and published in official gazettes and newspapers to ensure that all interested parties are adequately informed and given the opportunity to object if they so wish.
Scope and Application
The Conciliation and Arbitration Regulations (Amendment) applies to the amendments introduced to the Conciliation and Arbitration Act 1904 through the Conciliation and Arbitration Amendment Act (No. 2) 1983. Specifically, the regulations govern the procedural requirements for variations to terms of an award that become common rules of an industry in a Territory, as outlined in section 49A of the Act. This affects industries and entities operating within the Territories of Australia, as well as any individuals or organisations that may be bound by such common rules. The regulations are designed to ensure transparency and provide avenues for objection to variations that the Commission may propose. The geographic reach of these regulations is confined to the Australian Territories, with the Commonwealth having jurisdictional authority over the matter. There are no explicit exclusions, exemptions, or thresholds stated within the text of these regulations, though it is implied that they apply to any term of an award that is classified as a common rule within an industry in a Territory. The application of the Act and its regulations may be further extended or restricted by subordinate instruments, such as the prescribed forms (Form 11AA, Form 11AB, and Form 11AC) which detail the specific requirements for notices under various subsections of section 49A.
Key Provisions
The main operative sections of the Conciliation and Arbitration Regulations (Amendment) deal with the process by which variations to common rules of an industry in a Territory are managed. Section 49A(1) stipulates that any variation made by the Commission to a term of an award that is a common rule of an industry in a Territory automatically becomes a common rule for that industry, effective from the date the variation takes effect. Before making such a variation, the Registrar must, as per section 49A(2), provide notice of the intended hearing to relevant parties, as outlined in regulation 36A, which mandates the use of a prescribed form (Form 11AA) and requires service on specified organisations.
Once a variation is made, the Registrar must, according to section 49A(3), publish a notice inviting objections to the variation within 28 days, as stipulated in regulation 36B. This notice must also be in the prescribed form (Form 11AB) and published in the Gazette and a newspaper. If an objection is lodged within this period, the Commission is required to hear it, and if deemed appropriate, can declare that the variation does not apply to the objecting party or organisation, as per section 49A(4). The Registrar must then notify the parties of this declaration, as per section 49A(5) and regulation 36C, which specifies the use of a prescribed form (Form 11AC) and publication in the Gazette.
The Conciliation and Arbitration Regulations (Amendment) impose several obligations on the parties involved. The Registrar must ensure that notices are given in accordance with the regulations, specifying the form (Form 11AA for section 49A(2) and Form 11AB for section 49A(3)), and the method of service or publication. For section 49A(5), the notice must again be in the prescribed form (Form 11AC) and published in the Gazette. These notices must be timely and properly served or published to ensure that all interested parties are informed and have the opportunity to object if necessary. Additionally, the Commission is obligated to hear any objections and make a determination as to whether the variation should apply to the objecting party or organisation.
Breaches of the obligations and requirements set out in the Conciliation and Arbitration Regulations (Amendment) may have legal consequences. While the Explanatory Statement does not detail specific offences or penalties, non-compliance with the regulatory requirements for notice and publication could lead to legal challenges regarding the validity of the variation or the process followed. The effectiveness of variations could also be challenged if the proper procedures are not followed, potentially leading to protracted legal disputes. However, the primary consequences revolve around the enforceability of variations and the rights of parties to object and be heard, ensuring a fair and transparent process for all stakeholders involved.