EXPLANATORY STATEMENT
Select Legislative Instrument 2010 No. 113
Issued by the authority of the Minister for Employment and Workplace Relations
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Fair Work (Transitional Provisions and Consequential Amendments) Amendment Regulations 2010 (No. 2)
The Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Act) regulates the transition from the federal workplace relations system under the Workplace Relations Act 1996 (WR Act) to that under the Fair Work Act 2009 (FW Act).
Section 4 of the Act provides that the Governor General may make regulations prescribing matters required or permitted by this Act to be prescribed.
Item 11 of Schedule 2 to the Act provides for the continued application of the WR Act to conduct that occurred prior to repeal of the WR Act. Item 13 of Schedule 2 to the Act provides that the regulations may modify the operation of the WR Act as it applies under item 11 of Schedule 2 to the Act.
Under the WR Act, it was possible for employees to recover unpaid wages and monetary entitlements using small claims procedures in state and territory (state) magistrates’ courts. Small claims procedures provide employees with a low cost, informal jurisdiction in which to pursue monetary claims without the need for legal representation.
The purpose of the Regulations is to amend the Fair Work (Transitional Provisions and Consequential Amendments) Regulations 2009 to modify the operation of the WR Act as it continues to apply under item 11 of Schedule 2 to the Act so that the small claims procedures set out in the FW Act would apply to monetary claims made under certain provisions of the WR Act. The Regulations will not affect the circumstances in which a claim could be made under the WR Act.
The FW Act has expanded the arrangements for making small claims under the WR Act, by increasing the monetary limit on small claims from $10,000 to $20,000 and allowing small claims to be made to the Fair Work Division of the Federal Magistrates Court in addition to state magistrate courts.
The Regulations will improve the ability of employees to claim unpaid wages and monetary entitlements accrued under the WR Act by applying the expanded arrangements for making small claims in the FW Act to monetary claims made under the WR Act.
This would also allow breaches that started before commencement of the FW Act and have continued after that date to be dealt with by the relevant court under a single small claims procedure.
The Act does not impose any conditions that need to be satisfied before the power to make the Regulations may be exercised.
An assessment was made under the guidelines issued by the Office of Best Practice Regulation, which indicated that a Regulation Impact Statement was not required.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commence on 1 July 2010.
Overview
The Fair Work (Transitional Provisions and Consequential Amendments) Amendment Regulations 2010 (No. 2) were enacted to facilitate the transition from the federal workplace relations system under the Workplace Relations Act 1996 to the Fair Work Act 2009. These regulations were issued under the authority of the Minister for Employment and Workplace Relations and are a legislative instrument for the purposes of the Legislative Instruments Act 2003. The primary objective of these regulations is to ensure that the small claims procedures set out in the Fair Work Act apply to monetary claims made under certain provisions of the Workplace Relations Act. This change aims to enhance the ability of employees to claim unpaid wages and monetary entitlements accrued under the former Act by aligning the small claims process with the more expansive provisions of the Fair Work Act, including an increase in the monetary limit for small claims from $10,000 to $20,000 and the ability to make small claims in the Fair Work Division of the Federal Magistrates Court. The regulations do not affect the circumstances in which a claim could be made under the Workplace Relations Act but instead modify the application of the Act to accommodate these transitional changes.
Scope and Application
The Fair Work (Transitional Provisions and Consequential Amendments) Amendment Regulations 2010 (No. 2) pertain to the transition from the former federal workplace relations system under the Workplace Relations Act 1996 to the new system under the Fair Work Act 2009. The Act applies to conduct that occurred prior to the repeal of the WR Act, ensuring the continued application of the WR Act in certain instances. This transitional approach allows for existing claims under the WR Act to be processed under modified small claims procedures, reflecting the changes introduced by the FW Act. These regulations modify the operation of the WR Act to incorporate the expanded small claims provisions of the FW Act, thereby enhancing the ability of employees to claim unpaid wages and monetary entitlements through a more accessible and streamlined process. The amendments do not alter the conditions under which a claim can be made but rather improve the procedural framework for handling such claims. The Regulations are applicable nationally and will commence on 1 July 2010.
Key Provisions
The Fair Work (Transitional Provisions and Consequential Amendments) Amendment Regulations 2010 (No. 2) modify the Fair Work (Transitional Provisions and Consequential Amendments) Regulations 2009 to allow the continued application of the Workplace Relations Act 1996 (WR Act) to conduct occurring before its repeal, in alignment with section 4 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. Specifically, these Regulations adjust the operation of the WR Act as it applies to conduct prior to the repeal (Schedule 2, item 11 of the Act). The Regulations facilitate the transition to the Fair Work Act 2009 (FW Act) by aligning the small claims procedures under the WR Act with those provided for in the FW Act, as stipulated in Schedule 2, item 13 of the Act. These amendments mean that the expanded small claims procedures under the FW Act—which include an increased monetary limit from $10,000 to $20,000 and the option to file claims in the Fair Work Division of the Federal Magistrates Court—apply to monetary claims made under certain provisions of the WR Act.
The Regulations impose specific obligations on entities that continue to operate under the WR Act. For example, employers must ensure that the new small claims procedures are followed for any monetary claims made by employees that relate to conduct occurring before the commencement of the FW Act. Additionally, employees must be aware of the expanded options available to them for filing small claims, including the ability to use the Fair Work Division of the Federal Magistrates Court. These obligations aim to streamline the process for employees seeking to recover unpaid wages and other monetary entitlements accrued under the WR Act.
Failure to comply with the provisions of the Regulations may lead to legal consequences. While the Explanatory Statement does not detail specific offences or penalties for breaching the Regulations, it is important to note that breaches of workplace laws generally may attract civil or criminal penalties under the relevant Acts. For instance, the Fair Work Act 2009 and the Workplace Relations Act 1996 both contain provisions that allow for fines and, in some cases, imprisonment for serious breaches. The specific penalties depend on the nature and severity of the breach, but they can include substantial fines and potential imprisonment for individuals who wilfully or recklessly contravene the Acts. Therefore, it is crucial for both employers and employees to adhere to the small claims procedures outlined in the Regulations to avoid such consequences.