Industrial Relations Regulations (Amendment) 1995 No. 434
EXPLANATORY STATEMENT
Statutory Rules 1995 No. 434
Issued by the Authority of the Minister for Industrial Relations
Industrial Relations Act 1988
Industrial Relations Regulations (Amendment)
Section 359 of the Industrial Relations Act 1968 (the Act) provides that the Governor-General may make regulations for the purposes of the Act.
The Regulations:
• extend the existing exclusion of Australian Federal Police employees from the coverage of the unfair termination provisions of the Act; and,
• set out the powers and procedures of the Australian Industrial Relations Commission (the Commission) in relation to the new consent arbitration jurisdiction.
Regulation 3 extends the operation of Regulation 30BB until 1 January 1997. Regulation 30BB currently excludes persons employed under the Australian Federal Police Act 1979 from the unfair termination provisions of the Act until 1 January 1996.
The existing exclusion was made in recognition of the special problems which arose for the Australian Federal Police (AFP) where a termination was due to corruption or serious misconduct. The exclusion was to allow for an agreement to be reached between the Commissioner of the AFP and AFP employee representatives on the appropriate application of the unfair termination provisions. An agreement has been reached and will be given effect to once the Australian Federal Police Amendment Bill 1995 (AFP Bill) becomes law. Regulation 30BB will be repeated as soon possible after the AFP Bill becomes operative.
New Regulations 30DAA and 30DAB are necessary due to new unfair dismissal procedures which were introduced in the Industrial Relations and other Legislation Amendment Act 1995. The new procedures allow the parties to agree that a particular unfair dismissal matter will be dealt with by a consent arbitration conducted by the Commission.
Consent arbitration is a voluntary process whereby parties may agree to have a Commissioner provide an arbitrated settlement in relation to an unfair dismissal application. If the parties agree to use consent arbitration they must also agree to be bound by the arbitration's processes and outcome.
Subsection 170EC(3) of the Act provides that the procedures to be followed and the powers to be exercised by the Commission in conducting a consent arbitration are to be prescribed. Subsection 170EC(3) of the Act also provides that such procedures and powers are to be consistent with the terms of the International Labour Organisation's Termination of Employment Convention (the Convention).
Regulation 30DAA prescribes the powers and procedures to be utilised in conducting a consent arbitration. These powers and procedures are based upon the Commission's existing powers and procedures with rasped to industrial disputes which are set out in sections 110 and 111 of the Act. Modifications which recognise the distinct nature of consent arbitration proceedings and which ensure consistency with the terms of the Convention have been made.
Section 170ECA of the Act provides that appeals are only available with the leave of the Commission. Paragraph 170ECA(1)(b) further provides that the ground for an appeal to a Full Bench of the Commission in a consent arbitration is to be prescribed.
Regulation 30DAB provides that the ground of appeal is to be that the Commission was in error in deciding to make a consent arbitration award.
Regulation 3 commences when the Regulations are Gazetted.
Regulation 4 will commence on the same date as the consent arbitration provisions of the Act Those provisions are expected to commence, by Proclamation, on 15 January 1996.
Overview
The Industrial Relations Regulations (Amendment) 1995 No. 434, issued by the Authority of the Minister for Industrial Relations, amends the Industrial Relations Regulations under the Industrial Relations Act 1988. The primary objective of these regulations is to address specific issues related to the Australian Federal Police (AFP) and to establish new procedures for consent arbitration in unfair dismissal matters. Regulation 3 extends the exclusion of AFP employees from unfair termination provisions until 1 January 1997, allowing for an agreement to be reached on the application of these provisions, which will be implemented once the Australian Federal Police Amendment Bill 1995 becomes law. Furthermore, the new regulations introduce consent arbitration procedures, enabling parties to agree on an arbitrated settlement for unfair dismissal applications, with these procedures and powers being consistent with the International Labour Organisation's Termination of Employment Convention.
Scope and Application
The Industrial Relations Regulations (Amendment) 1995 No. 434 applies to the Industrial Relations Act 1988, specifically modifying the application of unfair termination provisions to exclude Australian Federal Police employees until 1 January 1997. This extension recognises the unique challenges faced by the Australian Federal Police in cases involving corruption or serious misconduct, allowing for an agreement between the Commissioner and AFP employee representatives to determine the appropriate application of the unfair termination provisions. This exclusion will remain in place until the Australian Federal Police Amendment Bill 1995 becomes law. Additionally, the Regulations establish the powers and procedures for consent arbitration, a voluntary process whereby parties to an unfair dismissal matter can agree to have a Commissioner provide an arbitrated settlement. These procedures are designed to be consistent with the International Labour Organisation's Termination of Employment Convention. The new consent arbitration provisions are expected to commence on 15 January 1996, and the Regulations will come into effect on the same date.
Key Provisions
The Industrial Relations Regulations (Amendment) 1995 No. 434, issued under the authority of the Minister for Industrial Relations, amends the existing Industrial Relations Regulations to extend certain exclusions and introduce new consent arbitration provisions. Regulation 3 extends the exclusion of Australian Federal Police (AFP) employees from unfair termination provisions until 1 January 1997, as detailed in Regulation 30BB. This extension acknowledges the unique challenges faced by the AFP in cases of corruption or serious misconduct, allowing time for the AFP Bill to become law and the new agreement to take effect. The new provisions, specifically Regulations 30DAA and 30DAB, establish the powers and procedures for consent arbitration, a voluntary process where parties can agree to have a Commissioner arbitrate an unfair dismissal matter. Regulation 30DAA outlines these powers and procedures, which are adapted from existing Commission powers concerning industrial disputes, with modifications to align with the International Labour Organisation's Termination of Employment Convention.
The obligations imposed by these Regulations are significant. For the AFP, the extended exclusion under Regulation 30BB means they are temporarily outside the scope of the unfair termination provisions while the new agreement is implemented. For all parties involved in consent arbitration, Regulation 30DAA imposes the obligation to follow the prescribed procedures and be bound by the arbitration's outcome if they choose to participate in this process. The Commission is also required to ensure that its procedures and powers in conducting consent arbitrations are consistent with the Convention, as stipulated by Section 170EC(3) of the Industrial Relations Act 1988. Regulation 30DAB specifies that the only ground for appeal in a consent arbitration is if the Commission erred in deciding to make the award.
Breach of the Industrial Relations Regulations can lead to various consequences, although the specific penalties are not detailed in the explanatory statement. Generally, under the Industrial Relations Act 1988, breaches of regulations can result in both civil and criminal penalties, depending on the nature and severity of the offence. Civil penalties can include fines, while criminal penalties can involve imprisonment. The exact penalties are determined by the specific provisions of the Act and any related legislation, and they can vary widely based on the circumstances of the breach. The Commission’s role in enforcing these regulations ensures compliance and addresses any violations through the prescribed legal avenues.