EXPLANATORY STATEMENT
Select Legislative Instrument 2010 No. 99
Issued by the authority of the Minister for Employment and Workplace Relations
Fair Work Act 2009
Fair Work Amendment Regulations 2010 (No. 1)
Part 5-1 of the Fair Work Act 2009 (the Act) establishes and confers functions on Fair Work Australia (FWA) as an independent agency to oversee the workplace relations system.
Section 796 of the Act provides 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.
Section 625 of the Act provides for the President of FWA may make a number of delegations and section 671 of the Act provides for the General Manager of FWA may make a number of delegations. A delegation may be given under these sections to a member of staff of FWA who is an SES employee (or acting SES employee), or in a class of employees prescribed by the regulations. There is currently no class of employees prescribed by the regulations.
The purpose of the Regulations is to enable managers of regional offices of FWA to exercise powers under delegation from the President and General Manager. At the time of drafting the Act, the organisational structure of FWA was still to be finalised and it was left to the regulations to prescribe these employees (who are not SES employees).
Details of the Regulations are set out in the Attachment.
The Act does not impose any conditions that need to be satisfied before the power to make the Regulations may be exercised.
An assessment was made under the guidelines issued by the Office of Best Practice Regulation, which indicated that a Regulation Impact Statement was not required.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commence on the day after they are registered.
ATTACHMENT
Details of the Fair Work Amendment Regulations 2010 (No. 1)
Regulation 1 – Name of Regulations
Regulation 1 provides that the title of the Regulations is the Fair Work Amendment Regulations 2010 (No. 1).
Regulation 2 – Commencement
Regulation 2 provides for the Regulations to commence on the day after they are registered.
Regulation 3 - Amendment of Fair Work Regulations 2009
Regulation 3 provides that the Fair Work Regulations 2009 (the Principal Regulations) are to be amended as set out in Schedule 1.
Schedule 1 Amendments
Item [1] – Regulation 5.01, heading
Item 1 changes the heading of regulation 5.01 to identify that the regulation relates to the delegation of prescribed functions by the President of FWA. New regulation 5.01A relates to delegation by the President to prescribed persons.
Item [2] – After regulation 5.01
Item 2 inserts a new regulation 5.01A into the Principal Regulations to prescribe ‘State or Territory Service Managers’ as a class of employees under paragraph 625(3)(c) to whom a delegation may be given under subsection 625(2) of the Act. State and Territory Service Managers are responsible for the operation of regional offices, but are not SES officers.
Item [3] – After regulation 5.04
Item 3 inserts a new regulation 5.04A into the Principal Regulations to prescribe ‘State or Territory Service Managers’ as a class of employees under paragraph 671(1)(b) to whom a General Manager may, in writing, delegate all or any of his or her functions or powers.
Overview
The Fair Work Amendment Regulations 2010 (No. 1) were introduced to address a gap in the Fair Work Act 2009, which established Fair Work Australia (FWA) as an independent agency to oversee the workplace relations system. The primary issue these regulations sought to resolve was the absence of a prescribed class of employees who could be delegated specific functions by the President and General Manager of FWA. Enacted by the Minister for Employment and Workplace Relations, the policy objective was to facilitate the operational efficiency of FWA's regional offices by enabling the delegation of certain powers to State or Territory Service Managers. These managers, who are crucial for the day-to-day operations of regional offices but do not hold Senior Executive Service (SES) positions, were thus included as a class of employees eligible for such delegations. The regulations aim to provide the necessary framework to ensure that FWA can effectively exercise its oversight functions across different regions.
Scope and Application
The Fair Work Amendment Regulations 2010 (No. 1) serve to amend the Fair Work Regulations 2009 by expanding the scope of delegations that can be made by the President of Fair Work Australia (FWA) and the General Manager of FWA. These regulations are specifically tailored to address the organisational structure of FWA that was yet to be finalised at the time the Fair Work Act 2009 was drafted. The Act itself authorises the Governor-General to make regulations necessary for carrying out or giving effect to the Act, and these amendments seek to provide clarity and operational flexibility within FWA's regional offices. The amendments prescribe "State or Territory Service Managers" as a class of employees who can receive delegations from the President and the General Manager, allowing them to exercise certain functions and powers without being SES employees. These regulations apply nationally and are intended to streamline the delegation process within FWA, ensuring efficient management and oversight of regional operations. There are no specific exclusions or thresholds mentioned in the regulations, and their application is limited to the prescribed classes of employees within FWA’s regional offices.
Key Provisions
The Fair Work Amendment Regulations 2010 (No. 1) introduce specific provisions to the Fair Work Regulations 2009, aiming to streamline the delegation of certain functions within Fair Work Australia (FWA). Regulation 3 amends the Fair Work Regulations 2009 by incorporating changes detailed in Schedule 1. Specifically, Item 1 of Schedule 1 modifies the heading of Regulation 5.01 to clarify that it pertains to the delegation of prescribed functions by the President of FWA. This amendment is designed to enhance transparency and understanding of the regulatory framework governing delegations.
The Fair Work Amendment Regulations 2010 (No. 1) impose certain obligations and requirements on the parties involved. Firstly, Regulation 5.01A, introduced by Item 2 of Schedule 1, specifies that 'State or Territory Service Managers' are recognised as a class of employees eligible to receive delegations from the President of FWA. These managers, who are pivotal in overseeing regional operations but do not hold SES (Senior Executive Service) officer status, are now explicitly included in the delegation framework. Similarly, Item 3 of Schedule 1 introduces Regulation 5.04A, which allows the General Manager of FWA to delegate functions to these managers in writing. This provision aims to ensure that regional operations are effectively managed through appropriate delegations.
The Fair Work Amendment Regulations 2010 (No. 1) do not explicitly outline specific offences, penalties, or consequences for non-compliance. However, the effectiveness of the delegation framework established by these regulations is critical in ensuring that FWA can operate efficiently and effectively. Any failure to adhere to the prescribed delegation processes could potentially lead to operational inefficiencies or legal challenges, although the regulations themselves do not specify particular penalties for breaches. The overarching Fair Work Act 2009, however, may impose broader consequences for non-compliance with its provisions.