EXPLANATORY STATEMENT
Issued by the authority of the Minister for Employment
Subject – Fair Work Act 2009
Work Health and Safety Act 2011
Fair Work and Other Legislation Amendment (South Australian Employment Court) Regulations 2017
On 1 July 2017 the Industrial Relations Commission of South Australia and the Industrial Relations Court of South Australia will be abolished and the functions and members of these bodies transferred to the new South Australian Employment Tribunal and the South Australian Employment Court. The transfers are provided for in the Statutes Amendment (South Australian Employment Tribunal) Act 2016 (SA) (Statutes Amendment Act).
The Fair Work and Other Legislation Amendment (South Australian Employment Court) Regulations 2017 (the Regulations) make consequential changes to the Fair Work Regulations 2009 and the Work Health and Safety Regulations 2011 to maintain the status quo following this change.
The Regulations maintain the jurisdiction conferred by the Fair Work Act 2009 on ‘eligible State and Territory courts’ to determine underpayment of wages cases, and on state and territory courts to hear civil matters under the Work Health and Safety Act 2011, mainly in relation to the exercise of workplace rights of entry.
The Regulations also continue existing arrangements providing for the dual appointment of members of state industrial authorities to the Fair Work Commission.
These consequential amendments were requested by the South Australian Minister for Industrial Relations and developed in consultation with South Australian government officials. The Minister for Employment also consulted with the states and territories under the Intergovernmental Agreement for a National Workplace Relations System for the Private Sector. As the Regulations are of an administrative nature and do not substantially alter existing arrangements, broader consultation was considered unnecessary.
The Office of Best Practice Regulation advised that a Regulation Impact Statement was not required (OBPR ID: 21990).
The Regulations are a legislative instrument for the purposes of the Legislation Act 2003.
A Statement of Compatibility with Human Rights has been completed for the Regulations, in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The Statement’s assessment is that the Regulations are compatible with human rights. A copy of the Statement is attached.
ATTACHMENT
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Fair Work and Other Legislation Amendment (South Australian Employment Court) Regulations 2017
This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Disallowable Legislative Instrument
On 1 July 2017 the Industrial Relations Commission of South Australia and the Industrial Relations Court of South Australia will be abolished and the functions and members of these bodies transferred to the new South Australian Employment Tribunal and the South Australian Employment Court. The transfers are provided for in the Statutes Amendment (South Australian Employment Tribunal) Act 2016 (SA) (Statutes Amendment Act).
The Fair Work and Other Legislation Amendment (South Australian Employment Court) Regulations 2017 (the Regulations) makes consequential changes to the Fair Work Regulations 2009 and the Work Health and Safety Regulations 2011 to maintain the status quo following this change.
The Regulations maintain the jurisdiction conferred by the Fair Work Act 2009 (Fair Work Act) on ‘eligible State and Territory courts’ to determine underpayment of wages cases, and on state and territory courts to hear civil matters under the Work Health and Safety Act 2011 (WHS Act), mainly in relation to the exercise of workplace rights of entry.
The Regulations also continue existing arrangements providing for the dual appointment of members of state industrial authorities to the Fair Work Commission.
Human rights implications
The Regulations engage the right to just and favourable conditions of work (Article 7 of the International Covenant on Economic, Social and Cultural Rights (the ICESCR)).
Article 7 of the ICESCR encompasses a number of elements, including a right to fair wages and equal remuneration, a right to decent living and a right to safe and health working conditions. These rights are underpinned in Australia by the Fair Work Act and WHS Act.
As outlined above, the Regulations maintain access to the specialised South Australian employment court. If the Regulations were not made the range of courts that applicants may access would be narrowed. Providing easy and cost effective access to remedies supports the right to just and favourable conditions of work.
Conclusion
This Disallowable Legislative Instrument is compatible with human rights as it supports human rights.
Overview
The Fair Work and Other Legislation Amendment (South Australian Employment Court) Regulations 2017 were introduced to ensure the continuity of functions and jurisdiction following the abolition of the Industrial Relations Commission of South Australia and the Industrial Relations Court of South Australia, effective from 1 July 2017. These functions and members were transferred to the South Australian Employment Tribunal and the South Australian Employment Court, as stipulated by the Statutes Amendment (South Australian Employment Tribunal) Act 2016. This legislative amendment was enacted by the Parliament of Australia to maintain the status quo and uphold the existing legal framework concerning employment relations, workplace rights, and safety. The primary policy objective of these Regulations is to ensure uninterrupted access to the specialised South Australian employment court, thereby supporting the right to just and favourable conditions of work as outlined in the International Covenant on Economic, Social and Cultural Rights.
Scope and Application
The Fair Work and Other Legislation Amendment (South Australian Employment Court) Regulations 2017 apply to entities and individuals within the jurisdiction of South Australia, particularly those involved in employment relations and workplace health and safety. These Regulations were enacted to align with the broader legislative changes outlined in the Statutes Amendment (South Australian Employment Tribunal) Act 2016, which transferred functions and responsibilities from the Industrial Relations Commission and Industrial Relations Court of South Australia to the South Australian Employment Tribunal and the South Australian Employment Court, effective from 1 July 2017. The Regulations make consequential amendments to the Fair Work Regulations 2009 and the Work Health and Safety Regulations 2011, ensuring the continuity of jurisdiction for eligible state and territory courts in handling underpayment of wages cases and civil matters related to workplace health and safety, particularly concerning rights of entry. These amendments are essential to maintain the status quo and ensure that existing legal frameworks and court processes remain unaffected by the structural changes in the state’s employment tribunal system.
Key Provisions
The Fair Work and Other Legislation Amendment (South Australian Employment Court) Regulations 2017 (the Regulations) make several significant changes to existing legislation to accommodate the transfer of functions from the Industrial Relations Commission of South Australia and the Industrial Relations Court of South Australia to the new South Australian Employment Tribunal and the South Australian Employment Court, effective from 1 July 2017. The Regulations amend the Fair Work Regulations 2009 and the Work Health and Safety Regulations 2011, ensuring the status quo is maintained following the structural changes. Specifically, the Regulations confirm that ‘eligible State and Territory courts’ retain their jurisdiction under the Fair Work Act 2009 to determine underpayment of wages cases (section 1). Additionally, they maintain the authority of state and territory courts to hear civil matters under the Work Health and Safety Act 2011, particularly concerning workplace rights of entry (section 2). Furthermore, the Regulations continue the existing arrangements for the dual appointment of members of state industrial authorities to the Fair Work Commission (section 3).
The Regulations impose several obligations on the parties and entities they govern. For instance, they require state and territory courts to continue exercising their jurisdiction over underpayment of wages cases and workplace rights of entry, ensuring a smooth transition of responsibilities from the former Industrial Relations Commission and Court of South Australia to the new tribunal and court. Moreover, they mandate the continued dual appointment of members of state industrial authorities to the Fair Work Commission, preserving the integrity and expertise of these appointments. By maintaining these jurisdictional and appointment arrangements, the Regulations aim to ensure that the transition does not disrupt the delivery of justice or the functioning of industrial relations in South Australia.
There are no specific offences, penalties, or civil/criminal consequences outlined in the Regulations for breaches. However, the underlying Acts, namely the Fair Work Act 2009 and the Work Health and Safety Act 2011, do provide for various offences and penalties. For example, under the Fair Work Act, the maximum penalty for serious or repeated contraventions of the Act can be up to $66,600 for individuals and $333,000 for corporations (section 547). Similarly, under the Work Health and Safety Act, serious breaches can attract significant penalties, with the maximum penalty for corporations being $3.3 million (section 47A). While the Regulations themselves do not impose penalties, their failure to maintain the status quo could indirectly result in legal challenges or disputes that would be governed by the penalties stipulated in these underlying Acts.