EXPLANATORY STATEMENT
Select Legislative Instrument 2011 No. 178
(Issued by the authority of the Minister for Tertiary Education, Skills, Jobs and
Workplace Relations)
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Fair Work (Transitional Provisions and Consequential Amendments) Amendment Regulations 2011 (No. 1) Repeal Regulations 2011
Section 4 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (T&C Act) provides that the Governor-General may make regulations prescribing matters either required or permitted by the T&C Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the T&C Act.
Section 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make regulations the power shall, unless the contrary intention appears, be construed as including a power to repeal, rescind, revoke, amend or vary the regulations.
Item 43 of Schedule 3 to the T&C Act permits regulations to prescribe a work value, pay equity or equal remuneration order of a State industrial tribunal as the source order for a transitional pay equity order (TPEO), and to prescribe employers to whom a TPEO applies. Subitem 8(1) of Schedule 2 to the T&C Act enables regulations to modify the transitional Schedules to that Act.
These Regulations repeal the Fair Work (Transitional Provisions and Consequential Amendments) Amendment Regulations 2011 (No. 1) (the existing Regulations). The existing Regulations were made on 4 August 2011 and would otherwise commence on 1 October 2011.
The existing Regulations prescribe a 2009 decision of the Queensland Industrial Relations Commission (QIRC) entitled Queensland Services, Industrial Union of Employees AND Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others (A/2008/5) (the QIRC decision) as the source order for the TPEO. The existing Regulations also prescribe a list of employers to whom the TPEO applies, and makes arrangements for back payments in accordance with the TPEO to 1 January 2010 in scheduled instalments.
The QIRC decision applied to social and community services (SACS) sector employers in the Queensland industrial relations system (i.e. employers not covered at that time by the federal workplace relations system) and their employees. Following the QIRC decision, the Queensland Government committed an additional $414 million over four years to a range of employers across the Queensland SACS sector.
With effect from 1 January 2010, the Queensland Parliament referred to the Commonwealth power to extend the Fair Work Act 2009 (the Fair Work Act) to all private sector employers and their employees otherwise outside its scope.
At the time of the QIRC decision, a number of Queensland SACS sector employers who received supplementary funding from the Queensland Government were respondents to federal transitional awards made under the conciliation and arbitration power of the Constitution (the Social and Community Services (Queensland) Award 2001 and the Crisis Assistance Supported Housing (Queensland) Award 1999). The QIRC decision would have applied to these employers from 27 March 2011 (when transitional awards expired) had Queensland not referred workplace relations matters to the Commonwealth.
The Queensland Government asked the Commonwealth to extend the effect of the QIRC decision to these employers and their employees. Item 43 of Schedule 3 to the T&C Act provided a framework to do this.
The existing Regulations, which are expressed to commence on 1 October 2011, were made to give effect to this request but were subsequently subject to a notice of disallowance motion in the Senate.
The Regulations repeal the existing Regulations before they come into operation, therefore no rights or obligations arise under the existing Regulations.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commence on the day they are registered on the Federal Register of Legislative Instruments.
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Overview
The Fair Work (Transitional Provisions and Consequential Amendments) Amendment Regulations 2011 (No. 1) Repeal Regulations 2011 were enacted to address the transitional pay equity orders for certain employers in the Queensland social and community services sector following the referral of workplace relations matters to the Commonwealth by the Queensland Government. These Regulations were issued under the authority of the Minister for Tertiary Education, Skills, Jobs and Workplace Relations and serve to repeal the earlier Amendment Regulations 2011 (No. 1), which had been disallowed by the Senate. The primary policy objective is to ensure that the Queensland Industrial Relations Commission's 2009 decision is applied to the specified employers and employees in line with the commitment made by the Queensland Government, which provided additional funding to a range of employers in the sector. These Regulations aim to maintain the integrity and continuity of the transitional pay equity provisions while addressing the legal complexities arising from the disallowance of the initial regulations.
Scope and Application
The Fair Work (Transitional Provisions and Consequential Amendments) Amendment Regulations 2011 (No. 1) Repeal Regulations 2011 are a legislative instrument made under the authority of the Minister for Tertiary Education, Skills, Jobs and Workplace Relations. These Regulations primarily serve to repeal the Fair Work (Transitional Provisions and Consequential Amendments) Amendment Regulations 2011 (No. 1), which were intended to facilitate the extension of a specific industrial decision to certain Queensland employers within the federal workplace relations system. The repealed Regulations had been designed to address a decision made by the Queensland Industrial Relations Commission (QIRC) regarding the social and community services sector, which was intended to provide back payments to employees of certain employers from 1 January 2010. Given that the earlier Regulations were disallowed by the Senate, the current Regulations ensure that no rights or obligations arise from the earlier set of Regulations, effectively nullifying them before they could come into operation. The Regulations apply to employers in the Queensland social and community services sector who were subject to the QIRC decision and subsequently affected by the federal workplace relations system following the referral of workplace relations matters by the Queensland Government to the Commonwealth. The Regulations aim to align the application of the QIRC decision with the broader federal framework, ensuring a smooth transition and consistent application of industrial relations provisions across the relevant sector.
Key Provisions
The Fair Work (Transitional Provisions and Consequential Amendments) Amendment Regulations 2011 (No. 1) Repeal Regulations 2011 are primarily concerned with repealing the previously issued Amendment Regulations 2011 (No. 1), which were set to commence on 1 October 2011. These repealed regulations had initially been made to address the transitional pay equity order (TPEO) following a decision by the Queensland Industrial Relations Commission (QIRC) in 2009. Specifically, section 43 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (T&C Act) permitted the prescription of a state industrial tribunal order as the source order for a TPEO, and the identification of employers to whom the TPEO applies.
Under the repealed regulations, a 2009 QIRC decision was designated as the source order for the TPEO, which was to apply to a list of employers and arrange for back payments in accordance with the TPEO to 1 January 2010 in scheduled instalments. The repealed regulations were intended to facilitate the extension of the QIRC decision to employers who had received supplementary funding from the Queensland Government, following the referral of workplace relations matters to the Commonwealth. However, the original regulations were subject to a disallowance motion in the Senate, leading to their repeal before they could take effect.
The regulations impose specific obligations on the parties and entities they govern, primarily by ensuring that the previous transitional arrangements are nullified and that no rights or obligations arise from the now-repealed regulations. By repealing these regulations, the Act ensures that the original transitional arrangements do not take effect, thereby avoiding any confusion or unintended legal consequences that might arise from conflicting sets of regulations.
Breach of the regulations themselves is not applicable as the Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003 and primarily serve to repeal the previously issued Amendment Regulations 2011 (No. 1). However, any subsequent regulations made under the T&C Act may carry their own specific offences, penalties, or consequences for non-compliance. The repealed regulations themselves, having been annulled before they could be enforced, do not impose any direct penalties or consequences for breach. The Regulations themselves come into effect on the day they are registered on the Federal Register of Legislative Instruments.