EXPLANATORY STATEMENT
Select Legislative Instrument 2011 No. 152
Issued by the authority of the Minister for Tertiary Education, Skills, Jobs and Workplace Relations
Subject - Fair Work Act 2009
Fair Work Amendment Regulations 2011 (No. 3)
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.
The Regulations prescribe the Minister who administers the Public Service Act 1999 (‘Public Service Minister’) as employing authority for an Australian Public Service (‘APS’) employee. The Minister, referring currently to the Minister for Jobs, Skills and Workplace Relations, will no longer be an employing authority for these employees.
As a result of Machinery of Government changes, responsibility for APS workplace relations matters transferred from the Minister for Tertiary Education, Jobs, Skills and Workplace Relations to the Public Service Minister from 1 July 2010.
Prescribing the Public Service Minister as employing an authority for APS employees allows the Public Service Minister to approve enterprise agreements for APS employees on behalf of the Commonwealth. Being prescribed as employing authority for APS employees also gives the Public Service Minister standing to appear in related proceedings before Fair Work Australia.
Section 795 of the Act states that the employer of a public sector employee must act only through the employee’s employing authority acting on behalf of the employer. Subsection 795(4) then provides, in part, that ‘Public sector employment’ means employment of, or service by, a person in any capacity under a law prescribed by the regulations.
Schedule 6.3 to the Principal Regulations sets out the prescribed employees and corresponding employing authorities.
The Regulations amend Schedule 6.3 to the Principal Regulations to prescribe the Minister who administers the Public Service Act 1999 as employing authority for an Australian Public Service employee. The reference to ‘the Minister’, currently the Minister for Jobs, Skills and Workplace Relations, has been removed and that Minister is no longer an employing authority for APS employees.
The amendment has been requested by the Australian Public Service Commission. In accordance with the requirements of the Multilateral 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.
The Act does not impose any conditions that need to be satisfied before the power to make the proposed Regulations may be exercised.
The Regulations are 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.
The Regulations commence the day after they are registered on the Federal Register of Legislative Instruments.