EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 81
Issued by the authority of the Minister for Employment and Workplace Relations
Fair Work Act 2009
Fair Work (Oath and Affirmation) Regulations 2009
The Fair Work Act 2009 (the Act) will replace the Workplace Relations Act 1996, and will govern federal workplace relations.
The Act establishes Fair Work Australia (FWA), which replaces the Australian Industrial Relations Commission (AIRC), the Australian Industrial Registry, the Workplace Authority, the Australian Fair Pay Commission (AFPC) and the AFPC Secretariat. The Act also establishes the Office of the Fair Work Ombudsman, which replaces the Workplace Ombudsman.
FWA will consist of the President, Deputy Presidents, Commissioners and between 3-6 part-time Minimum Wage Panel Members. These are collectively known as FWA Members.
Section 634 of the Act provides that before beginning to discharge the duties of his or her office, an FWA Member must take an oath or affirmation in accordance with the Regulations.
The Regulations prescribe the form of the oath or affirmation to be taken by the President, and the persons before whom the oath or affirmation must be taken.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commenced on 26 May 2009 to coincide with the commencement of the provisions that establish the institutional arrangements for the new federal workplace relations system and appoint the current President of the Australian Industrial Relations Commission as the inaugural President of Fair Work Australia.
Overview
The Fair Work (Oath and Affirmation) Regulations 2009 were issued under the Fair Work Act 2009 to provide a legislative framework for the oath and affirmation required for members of Fair Work Australia, which replaced several prior bodies including the Australian Industrial Relations Commission and the Australian Fair Pay Commission. The Act itself was introduced to consolidate and modernise the federal workplace relations system, addressing gaps and inefficiencies in the former Workplace Relations Act 1996 by establishing a streamlined institution, Fair Work Australia, to oversee industrial relations and workplace laws. The objective of these regulations is to ensure that members of Fair Work Australia uphold their duties with the requisite solemnity and commitment, thereby maintaining the integrity and authority of the institution. The Regulations are a legislative instrument under the Legislative Instruments Act 2003, and they came into effect on 26 May 2009, aligning with the commencement of the new federal workplace relations system.
Scope and Application
The Fair Work (Oath and Affirmation) Regulations 2009 apply to all members of Fair Work Australia (FWA), which encompasses the President, Deputy Presidents, Commissioners, and part-time Minimum Wage Panel Members. These individuals are mandated to take an oath or affirmation before commencing their duties, as outlined in section 634 of the Fair Work Act 2009. The Regulations specify the form of the oath or affirmation and the authorised persons before whom it must be administered. This legislative instrument is essential for the establishment of FWA, which replaces several prior entities including the Australian Industrial Relations Commission, the Australian Industrial Registry, and the Workplace Authority, among others. The Fair Work Act 2009 governs federal workplace relations across Australia, and these Regulations ensure that the transition to the new system is executed with due formality and adherence to legal requirements. The Regulations came into effect on 26 May 2009, aligning with the commencement of the new federal workplace relations system and the appointment of the inaugural President of FWA.
Key Provisions
The Fair Work (Oath and Affirmation) Regulations 2009 (Regulations) under the Fair Work Act 2009 (the Act) provide the formal requirements for members of Fair Work Australia (FWA) to take an oath or affirmation before beginning their duties. Section 634 of the Act mandates that any individual appointed to a position within FWA must take an oath or affirmation in a prescribed form. The Regulations specify the exact wording of the oath or affirmation that must be taken by the President of FWA (Regulation 3), and outline the persons before whom the oath or affirmation must be administered (Regulation 4). For instance, the oath or affirmation must be taken before a person authorised by the Regulations to administer such oaths or affirmations, which typically includes a judge or a magistrate.
The obligations imposed by the Regulations on FWA members are primarily administrative and procedural. Members must adhere to the prescribed form of the oath or affirmation as stipulated in the Regulations. They must ensure that the oath or affirmation is administered in the presence of a person authorised under the Regulations to perform this function. The Regulations also mandate that the oath or affirmation must be recorded in a manner specified by the Regulations, ensuring there is a formal and documented record of the process.
There are no specific offences, penalties, or consequences outlined in the Regulations themselves for failing to take the oath or affirmation as required. However, non-compliance with the requirements of the Act or the Regulations could potentially lead to broader consequences under the Fair Work Act. For instance, if a member of FWA fails to take the required oath or affirmation, it could be seen as a failure to properly discharge their duties, which might result in legal or administrative consequences under the Act. The maximum penalties for breaches of the Fair Work Act can include substantial fines and, in some cases, imprisonment, depending on the nature and severity of the breach.