EXPLANATORY STATEMENT
Select Legislative Instrument 2011 No. 244
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. 4)
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.
Subsection 548(8) of the Act provides that an officer of an industrial association may represent a party in a small claims proceeding in circumstances specified in the Principal Regulations.
The Regulations enable an official of an industrial association to represent a party in a small claims proceeding in circumstances where the party is granted leave by the Federal Magistrates Court or a State magistrates court. In accordance with subsection 548(9) of the Act, the Regulations operate in a State magistrates court only if the law of the State allows a party to be represented by an official of an industrial association in that court in circumstances where a party is granted leave by that court.
Regulation 4.01 of the Principal Regulations outlines the manner in which a person must indicate that he or she wants a small claims procedure to apply to an action that the person has commenced. The Regulations amend regulation 4.01 of the Principal Regulations to prescribe that a party to small claims proceedings in the Federal Magistrates Court may be represented by an official of an industrial association if the party is granted leave to do so by the Federal Magistrates Court.
Further, the Regulations prescribe that a party to small claims proceeding heard in a magistrates court may be represented by an official of an industrial association if the party is granted leave to do so by that court and the law of the State allows a party to be represented in that court by officials representing interests related to the matters in dispute.
The Regulations were developed in response to the recent decision of the Federal Magistrates Court in Corcoran & Ors v Bansley Pty Ltd [2011] FMCA 440 not to allow the applicants in the matter to be represented by an industrial association. This case identified that while subsection 548(8) of the Act provides that an officer of an industrial association may represent a party in a small claims proceeding in circumstances specified in the Principal Regulations, no such regulations have been made under this provision. The decision highlighted the potential for unfairness to result if parties pursue such complicated cases in this jurisdiction without representation by their industrial association.
In accordance with the requirements of the Multilateral Inter-Governmental Agreement for a National Workplace Relations System for the Private Sector, relevant states and territories were consulted.
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. 4) were enacted to address the gap identified in the Fair Work Act 2009 regarding the representation of parties in small claims proceedings by officials of industrial associations. This legislative instrument was issued by the Minister for Tertiary Education, Skills, Jobs and Workplace Relations, pursuant to the authority granted under Section 796 of the Fair Work Act. The primary policy objective of these regulations is to ensure fairness and effective representation in small claims proceedings by allowing officials of industrial associations to represent parties, provided they are granted leave by the relevant court and the law of the state permits such representation. This amendment was in direct response to the Federal Magistrates Court's decision in the case of Corcoran & Ors v Bansley Pty Ltd, which highlighted the potential for significant disadvantage when parties are not permitted to be represented by their industrial association in such proceedings.
Scope and Application
The Fair Work Amendment Regulations 2011 (No. 4) amends the Fair Work Regulations 2009 to allow an official of an industrial association to represent a party in a small claims proceeding if the party is granted leave by the Federal Magistrates Court or a State magistrates court. This amendment applies to the Commonwealth and extends to each state where the law of the state allows a party to be represented by an official of an industrial association in the magistrates court under the circumstances specified. The Fair Work Act 2009, together with the Fair Work Regulations 2009, provides the statutory framework for governing federal workplace relations. The Regulations respond to a decision by the Federal Magistrates Court that highlighted potential unfairness in small claims proceedings where parties were not allowed to be represented by an industrial association. The Regulations do not impose any conditions or thresholds before they may be exercised and commence the day after they are registered on the Federal Register of Legislative Instruments.
Key Provisions
The Fair Work Amendment Regulations 2011 (No. 4) provide provisions that enable officials of industrial associations to represent parties in small claims proceedings. Section 4.01 of the Fair Work Regulations 2009 is amended to allow an official of an industrial association to represent a party in small claims proceedings in the Federal Magistrates Court or a State magistrates court if the party is granted leave by the respective court (regulation 4). This amendment responds to the decision in Corcoran & Ors v Bansley Pty Ltd [2011] FMCA 440, which highlighted the potential for unfairness when parties pursue small claims without representation from their industrial association.
The Regulations impose obligations on officials of industrial associations and the courts to ensure compliance with the amended provisions. Officials of industrial associations must ensure they meet the criteria set out in the Regulations before representing parties in small claims proceedings (regulation 4). Courts are required to assess whether the party requesting representation by an official of an industrial association meets the leave criteria before granting such representation. The Regulations do not impose additional obligations on parties involved in small claims proceedings beyond those already required under the Fair Work Act 2009.
There are no specific offences, penalties, or consequences outlined in the Regulations for breach of the provisions. However, any breach of the Fair Work Act 2009 or the Fair Work Regulations 2009 may result in civil or criminal penalties as provided for under the Act. For instance, wilful contraventions of the Act may lead to fines or imprisonment, while breaches of orders or directions made under the Act may result in fines. The specific penalties for breaches will depend on the nature and severity of the contravention.
In summary, the Fair Work Amendment Regulations 2011 (No. 4) amend the Fair Work Regulations 2009 to enable officials of industrial associations to represent parties in small claims proceedings in the Federal Magistrates Court or a State magistrates court if leave is granted by the respective court. The Regulations impose obligations on officials of industrial associations and the courts to ensure compliance with the amended provisions. While there are no specific penalties outlined in the Regulations, any breach of the Fair Work Act 2009 or the Fair Work Regulations 2009 may result in civil or criminal penalties.