EXPLANATORY STATEMENT
Select Legislative Instrument 2013 No. 69
Issued by the authority of the Minister for Employment and Workplace Relations
Subject – Fair Work Act 2009
Fair Work Amendment Regulation 2013 (No. 1)
Section 796 of the Fair Work Act 2009 (the Act) provides, in part, that the Governor-General may make regulations prescribing matters required or permitted by the Act, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Act, together with the Fair Work Regulations 2009 (the Principal Regulations), establishes a statutory framework to govern federal workplace relations.
Part 3–4 of the Act allows officials of organisations (such as Trade Unions) who hold an entry permit under the Act to enter premises for purposes related to their representative role (for example, to investigate a suspected contravention of the Act or a term of a fair work intstrument) and also imposes additional requirements for exercising rights of entry under prescribed State or Territory occupational health and safety (OHS) laws.
Section 494 of the Act requires an official wishing to exercise a right of entry under a prescribed State or Territory occupational health and safety (OHS) law to also hold a permit under the Act. Subsection 494(3) provides that ‘State or Territory OHS law’ means a law of a State or Territory prescribed by the Principal Regulations.
The Fair Work Amendment Regulation 2013 (No. 1) (the Regulation) amends regulation 3.25 of the Principal Regulations to add the South Australian Work Health and Safety Act 2013 (SA WHS Act) to the list of prescribed State and Territory OHS laws. The SA WHS Act commenced on 1 January 2013 and includes a mirror requirement to section 494 of the Act. As such, officials of an organisation may exercise a right of entry under the SA WHS Act provided the official also holds a permit issued under the Act. The Regulation ensures that this requirement is also reflected in the Act.
The Regulation is made at the request of the South Australian government and the Australian Manufacturing Workers’ Union. In accordance with the Inter-Governmental Agreement for a National Workplace Relations System for the Private Sector, all States and Territories were consulted on the Regulation. The text of the Regulation was provided to all States and Territories for the purpose of consultation. No jurisdiction expressed concern with the 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 measures in the Regulation are compatible with human rights. A copy of the Statement is 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 (reference 14926).
The Regulation commences the day after it is registered on the Federal Register of Legislative Instruments.
ATTACHMENT
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Fair Work 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 Fair Work Amendment Regulation 2013 (No. 1) (the Regulation) amends the Fair Work Regulations 2009 (the Principal Regulations) to add the South Australian Work Health and Safety Act 2012 (the SA WHS Act) as a prescribed State or Territory OHS law for the purposes of section 494 of the Fair Work Act 2009 (the Act), following commencement of the SA WHS Act on 1 January 2013.
Section 494 of the Act requires an official wishing to exercise a right of entry under a prescribed State or Territory occupational health and safety (OHS) laws to also hold a permit under the Act.
The Regulation amends regulation 3.25 of the Principal Regulations to add the SA WHS Act to the list of prescribed State and Territory OHS laws in the Regulation. The SA WHS Act includes a mirror requirement to section 494 of the Act. As such, officials of an organisation must not exercise a right of entry under the South Australian WHS Act unless the official also holds a permit issued under the Act. The Regulation ensures that this requirement is also reflected in the Act.
Human Rights Implications
Right to freedom of association
Article 22 of the ICCPR protects the right to freedom of association, including the right to form and join trade unions. Article 8(1) of the ICESCR protects:
- the right to form and join trade unions;
- the right of trade unions to function freely subject to necessary limitations in the interests of national security, public order or the protection of the rights and freedoms of others; and
- the right to strike, provided it is exercised in conformity with the laws of the particular country.
The amendment made by the Regulation engages the right to freedom of association and the rights of people to form organisations to represent their interests. Of particular relevance in the right of entry context is guidance provided by the Committee on Freedom of Association established by the Governing Body of the International Labour Organisation in its 336th Report at paragraph 108 that:
… Governments should guarantee access of trade union representatives to workplaces with due respect for the rights of property and management, so that trade unions can communicate with workers....
Part 3-4 of the Act provides a framework for right of entry for officials of organisations, and imposes an additional requirement on officials wishing to exercise a right of entry under State and Territory WHS laws to also hold a permit under the Act. A mirror requirement is included in the the SA WHS Act. Updating the list of state and territory OHS laws prescribed in regulation 3.25 will clarify the interaction of the right of entry provisions in the Act and the the new right of entry provisions contained in the SA WHS law, and ensure permit holders are able to exercise rights of entry for OHS purposes.
Conclusion
The Legislative Instrument is compatible with human rights.
William Richard Shorten, Minister for Employment and Workplace Relations