EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 207
Issued by the authority of the Minister for Employment and Workplace Relations
Fair Work Act 2009
Fair Work Amendment Regulations 2009 (No. 2)
Subsection 796(1) of the Fair Work Act 2009 (the Act) provides that the
Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Part 3-4 of the Act confers rights on union officials to enter premises and exercise certain powers while on those premises. One of the purposes for which union officials can enter premises under the Act is to investigate suspected contraventions of awards relating to Textile, Clothing and Footwear (TCF) outworkers. A TCF outworker is an individual who performs work in the textile, clothing and footwear industry at premises not conventionally regarded as business premises. This often includes residential premises. The Act also imposes additional obligations on union officials exercising a right of entry under State or Territory occupational health and safety (OHS) laws.
The Regulations amend the Fair Work Regulations 2009 (the Principal Regulations) to expand the circumstances in which entry rights can be exercised in relation to TCF outworkers. The Regulations also ensure that additional obligations in the Act attach to entry under the newly enacted OHS law in the Australian Capital Territory.
The Principal Regulations currently prescribe a number of instruments to be a ‘TCF award’ in relation to TCF outworkers. However, a number of other instruments also cover work performed by TCF outworkers.
The Regulations ensure that entry rights can be exercised with respect to TCF outworkers covered by instruments not currently prescribed by the Principal Regulations.
The Principal Regulations also currently prescribe the Occupational Health and Safety Act 1989 (ACT) as a ‘State or Territory OHS law’ for the purposes of the Act. However, that law will be replaced by the Work Safety Act 2008 (ACT) from 1 October 2009. The Regulations replace the reference to the existing Australian Capital Territory OHS law with a reference to the new law. This amendment ensures that the Act continues to apply to union officials entering premises under Australian Capital Territory OHS legislation.
Details of the Regulations are included in the Attachment.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Regulations 1 to 3 and Schedule 1 to the Regulations, which relates to the meaning of ‘TCF award’, commence on the day after the Regulations are registered on the Federal Register of Legislative Instruments.
Schedule 2 to the Regulations, which relates to the meaning of ‘State or Territory OHS law’, commences on the commencement of the Work Safety Act 2008 (ACT), which is due to commence on 1 October 2009.
The Regulations have no compliance cost to business or impact on business and individuals or the economy.
Consultations were conducted in relation to the development of these Regulations with the Textile Clothing and Footwear Union of Australia and the ACT Government.
ATTACHMENT
Details of Fair Work Amendment Regulations 2009 (No. 2)
Regulation 1 – Name of Regulations
This regulation provides that the Regulations are to be known as the Fair Work Amendment Regulations 2009 (No. 2).
Regulation 2 – Commencement
Paragraph 2(a) of this regulation provides that regulations 1 to 3 and Schedule 1 commence on the day after they are registered on the Federal Register of Legislative Instruments.
Paragraph 2(b) of this regulation provides that Schedule 2 commences on the commencement of the Work Safety Act 2008 (ACT).
Regulation 3 – Amendment of the Fair Work Regulations 2009
This regulation provides that the Fair Work Regulations 2009 (the Principal Regulations) are amended in accordance with Schedules 1 and 2.
Schedule 1 – Amendments
Item [1] – Regulation 1.08
Union officials can enter premises under the Fair Work Act 2009 (Cth) (the Act) to investigate suspected contraventions of designated outworker terms in instruments that relate to Textile, Clothing and Footwear (TCF) outworkers whom the union official is entitled to represent. The TCF outworker entry provisions only apply to outworkers whose work is covered by a TCF Award. ‘TCF Award’ is defined as an instrument prescribed by the Principal Regulations.
Regulation 1.08 of the Principal Regulations currently prescribes the Textile Industry Award 2000 and the Textile, Clothing, Footwear and Associated Industries Award 2010 for this purpose.
This amendment alters the list of instruments prescribed to be TCF awards. Items 1 to 19 list 19 different awards and Notional Agreements Preserving State Awards (NAPSAs) that currently cover the work of TCF outworkers. These instruments will, however, be replaced by the Textile, Clothing, Footwear and Associated Industries Award 2010 (a modern award) that will commence operation from 1 January 2010 (see item 20 in the table inserted by this amendment).
This amendment ensures that entry rights can be exercised with respect to TCF outworkers covered by the full range of award-based instruments before and after 1 January 2010.
Schedule 2 – Amendment
Item [1] – Regulation 3.25, table, item 5
Union officials can enter workplaces by exercising a right of entry under State or Territory occupational health and safety (OHS) laws. Where a union official wishes to enter certain Commonwealth or Territory premises under a right conferred by a State or Territory OHS law, the Act imposes additional obligations on the official (Division 3 of Part 3-4), but does not override the State or Territory laws.
‘State or Territory OHS law’ is defined in subsection 494(3) of the Act as a law of a State or Territory prescribed in the Principal Regulations. The Principal Regulations currently prescribe the relevant State and Territory laws for the purposes of the definition (regulation 3.25). Currently, the Occupational Health and Safety Act 1989 (ACT) is prescribed. On 1 October 2009 that Act will be repealed and replaced by the Work Safety Act 2008 (ACT).
This amendment alters regulation 3.25 by replacing the reference to the existing Australian Capital Territory OHS law with a reference to the Work Safety Act 2008 (ACT). The amendment ensures that the additional conditions currently imposed by the Act on union officials entering premises under the existing Australian Capital Territory law will continue to apply to officials entering premises under the new law.