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.
Overview
The Fair Work Amendment Regulations 2011 (No. 3) were enacted to address the transfer of responsibilities concerning Australian Public Service (APS) workplace relations from the Minister for Tertiary Education, Jobs, Skills and Workplace Relations to the Public Service Minister, effective from 1 July 2010. This legislative instrument was issued by the authority of the Minister for Tertiary Education, Skills, Jobs and Workplace Relations, and aligns with the policy objective of ensuring the proper administration of workplace relations within the APS, as mandated by the Fair Work Act 2009. The Regulations prescribe the Public Service Minister as the employing authority for APS employees, thereby granting the Minister the authority to approve enterprise agreements and the standing to appear in related proceedings before Fair Work Australia. This amendment responds to a request from the Australian Public Service Commission and follows consultation with relevant state and territory bodies, in accordance with the Multilateral Inter-Governmental Agreement for a National Workplace Relations System for the Private Sector.
Scope and Application
The Fair Work Amendment Regulations 2011 (No. 3) pertain to the Fair Work Act 2009 and are designed to streamline the administration of workplace relations within the Australian Public Service (APS). These Regulations specifically modify the Fair Work Regulations 2009 by designating the Minister who administers the Public Service Act 1999 as the employing authority for APS employees. This change follows the transfer of responsibility for APS workplace relations matters from the Minister for Tertiary Education, Jobs, Skills and Workplace Relations to the Public Service Minister, effective from 1 July 2010. The amendment ensures that the Public Service Minister has the authority to approve enterprise agreements for APS employees and the standing to appear in related proceedings before Fair Work Australia. These Regulations apply to all APS employees and are part of a broader national framework for workplace relations, reflecting consultation with relevant State and Territory bodies as required by the Multilateral Inter-Governmental Agreement for a National Workplace Relations System for the Private Sector.
Key Provisions
The Fair Work Amendment Regulations 2011 (No. 3) (the Regulations) amend the Fair Work Regulations 2009 by prescribing the Minister who administers the Public Service Act 1999 (the Public Service Minister) as the employing authority for Australian Public Service (APS) employees, as provided in section 796 of the Fair Work Act 2009 (the Act). This change means that the Public Service Minister is now the entity authorised to approve enterprise agreements for APS employees and has the standing to appear in related proceedings before Fair Work Australia, as outlined in section 795 of the Act. This amendment effectively transfers the responsibilities of APS workplace relations from the Minister for Jobs, Skills and Workplace Relations to the Public Service Minister, a shift that took effect from 1 July 2010.
The Regulations impose specific obligations on the Public Service Minister, who is now required to act as the employing authority for APS employees. This includes approving enterprise agreements and having the legal authority to represent the Commonwealth in any proceedings related to APS employees. It also necessitates that the Public Service Minister ensure that all actions taken on behalf of the Commonwealth comply with the requirements set out in the Act and the Fair Work Regulations 2009.
The Regulations do not specify any offences or penalties for non-compliance. However, any failure by the Public Service Minister to adhere to the obligations prescribed by the Act and the Regulations could potentially lead to legal challenges or disputes regarding the validity of enterprise agreements or the authority to represent the Commonwealth in Fair Work Australia proceedings. These issues would be subject to the broader legal frameworks governing public sector employment and workplace relations in Australia. The Regulations are designed to ensure clarity and consistency in the administration of workplace relations for APS employees, thereby facilitating effective governance and dispute resolution within the public sector.