EXPLANATORY STATEMENT
Select Legislative Instrument 2011 No. 23
Subject - Fair Work Act 2009
Fair Work Amendment Regulations 2011 (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 and replaces the Workplace Relations Act 1996.
The Regulations correct a technical error in a provision in the Principal Regulations which deals with the interaction between fair work instruments and public sector employment laws.
Section 40 of the Act provides that public sector employment laws (which are defined to include Territory laws that deal with public sector employment) prevail over fair work instruments unless the regulations specify otherwise. Regulation 1.16 of the Principal Regulations was made to ensure that section 40 of the Act did not inadvertently revive specified Australian Capital Territory (ACT) and Northern Territory (NT) public sector laws. However, regulation 1.16 does not prescribe the fair work instruments that are intended to prevail over the specified Territory public sector laws. An unintended consequence is that the ACT Public Sector Management Act 1994 (and other Territory public sector laws) prevail over modern awards and enterprise agreements to the extent of the inconsistency. This was not the intent and is inconsistent with current practice.
The Regulations amend regulation 1.16 to prescribe all fair work instruments (other than Fair Work Australia orders) for the purposes of the public sector employment laws specified in paragraphs 1.16 (a)-(c).
The Act does not impose any conditions that need to be satisfied before the power to make the Regulations may be exercised.
The amendment has been requested by the ACT government. In accordance with the requirements of the Inter-Governmental Agreement for a National Workplace Relations System for the Private Sector relevant State and Territory bodies have been consulted in relation to the amendment and all agreed to the amendment as drafted.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
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 commence on the day after they are registered on the Federal Register of Legislative Instruments.
Authority: Section 796 of the Fair Work Act 2009
Overview
The Fair Work Amendment Regulations 2011 (No. 1) were enacted to correct a technical error in the Fair Work Regulations 2009 concerning the interaction between fair work instruments and public sector employment laws. This was necessary because section 40 of the Fair Work Act 2009 stipulates that public sector employment laws prevail over fair work instruments unless otherwise specified by regulations. However, a mistake in regulation 1.16 inadvertently allowed certain Australian Capital Territory and Northern Territory public sector laws to override modern awards and enterprise agreements, contrary to the intended purpose and existing practice. The amendment to regulation 1.16 aims to rectify this oversight by explicitly prescribing all fair work instruments, except Fair Work Australia orders, to ensure they properly prevail over the specified Territory public sector laws. This amendment was requested by the ACT government and has been endorsed by all relevant State and Territory bodies as per the Inter-Governmental Agreement for a National Workplace Relations System for the Private Sector. The Regulations were made under section 796 of the Fair Work Act 2009 and do not require a Regulation Impact Statement according to the guidelines issued by the Office of Best Practice Regulation.
Scope and Application
The Fair Work Amendment Regulations 2011 (No. 1) amend the Fair Work Regulations 2009 to correct a technical error regarding the interaction between fair work instruments and public sector employment laws, particularly for the Australian Capital Territory and the Northern Territory. This legislative instrument applies to all entities and individuals within the scope of the Fair Work Act 2009, which governs federal workplace relations and supersedes the Workplace Relations Act 1996. The Regulations are designed to ensure that modern awards and enterprise agreements prevail over certain public sector employment laws, as intended by the Act, thereby resolving the unintended consequence where such laws previously prevailed due to the oversight in regulation 1.16 of the Principal Regulations. The Regulations are applicable across the Commonwealth, and their enactment follows consultation with relevant state and territory bodies under the Inter-Governmental Agreement for a National Workplace Relations System for the Private Sector. The Regulations themselves do not impose any specific conditions or thresholds for their application, and they come into effect on the day after their registration on the Federal Register of Legislative Instruments.
Key Provisions
The Fair Work Amendment Regulations 2011 (No. 1) make amendments to the Fair Work Regulations 2009, which were established alongside the Fair Work Act 2009 to provide a comprehensive framework governing federal workplace relations. These regulations specifically address a technical error in regulation 1.16 of the Fair Work Regulations 2009, which incorrectly allowed certain Australian Capital Territory (ACT) and Northern Territory (NT) public sector laws to prevail over modern awards and enterprise agreements. This was not the intended outcome and has led to inconsistencies in the application of workplace laws.
Section 40 of the Fair Work Act 2009 stipulates that public sector employment laws, including those of the territories, generally prevail over fair work instruments unless the regulations specify otherwise. Regulation 1.16 of the Fair Work Regulations 2009 was designed to ensure that section 40 did not inadvertently revive certain ACT and NT public sector laws; however, it failed to prescribe the fair work instruments that should prevail over these laws, leading to unintended consequences. The Fair Work Amendment Regulations 2011 (No. 1) amend regulation 1.16 to explicitly list all fair work instruments (excluding Fair Work Australia orders) that should prevail over the specified ACT and NT public sector laws.
The Fair Work Amendment Regulations 2011 (No. 1) impose clear obligations on relevant parties to ensure that fair work instruments take precedence over specified ACT and NT public sector laws, aligning with the intended framework established by the Fair Work Act 2009. This amendment is intended to rectify the technical error and ensure consistency in the application of workplace laws across federal and territory jurisdictions. The regulations do not impose any specific conditions that need to be satisfied before exercising the power to make these regulations, as the authority to do so is granted under section 796 of the Fair Work Act 2009.
Failure to comply with the provisions of the Fair Work Amendment Regulations 2011 (No. 1) could result in legal disputes regarding the validity of certain public sector employment laws and fair work instruments. While the regulations themselves do not specify explicit offences, penalties, or civil/criminal consequences for breaches, any resulting disputes or inconsistencies could lead to litigation. The Fair Work Act 2009 provides for various enforcement mechanisms, including the ability to seek remedies through the Fair Work Commission or the Federal Court, where breaches or misinterpretations of the Act or its regulations could be addressed.