Industrial Relations Regulations (Amendment) 1992 No. 274
EXPLANATORY STATEMENT
Statutory Rules 1992 No. 274
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 1988 (the Act) authorises the making of regulations prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Section 353A of the Act further provides for the making of regulations prescribing the making and retention by employers of records relating to the employment of persons under awards and the inspection of such records.
The regulations insert a new Part 9A into the Industrial Relations Regulations (the Regulations) to provide that employers make and retain an employment record for each employee containing a range of employment details and that employers make the records available for inspection by certain persons.
The regulations are necessary because inspectors and others seeking to encourage compliance with awards of the Australian Industrial Relations Commission (the Commission) can be hampered by deficiencies in employment records. Without such records, the information necessary to demonstrate whether or not an employer is complying with an award is not readily available. The regulations provide for such deficiencies, where they exist, to be remedied by the making and retention by employers of accurate records. Those records are to be sufficient to demonstrate compliance with relevant awards. The matter has been extensively considered by the Federal Awards Management Advisory Committee, a tripartite consultative body including Government, union and employer representatives.
Details of the Regulations are at Attachment A.
The Regulations commence on Gazettal.
ATTACHMENT A
DETAILS OF REGULATIONS
Industrial Relations Act 1988
Industrial Relations Regulations (Amendment)
Regulation 1 is a formal provision
Regulation 2: Part 9A - Records by Employers
Regulation 2 inserts a new Part 9A - Records by Employers. The Part comprises the following regulations:
Regulation 131A requires an employer who employs an employee under an award, other than an award to which a certificate under the proposed regulation 131P (Award provisions relating to records) applies, to keep records in accordance with Part 9A. The employer is also required to retain records for seven (7) years:
- in the case of entries required under regulation 131D (Contents of records -general) or paragraph 131H(f), after the date on which an entry is changed or the employee's employment is terminated, whichever is the earliest;
- in any other case, after the entry is made.
Regulation 131A further provides that the failure to do so is an offence with a penalty of $1,000.
Regulation 131B provides that the record of an employee must be in a condition that allows an inspector to ascertain whether award conditions are being complied with in relation to the employee.
Regulation 131C provides that records must be in a legible form in the English language or in a form that is readily accessible and convertible into a legible form in the English language.
Regulation 131D provides that the record relating to an employee must contain a number of specified particulars concerning any employee and his or her employment.
Regulation 131E provides that, if overtime may be paid under the award to the employee, the record relating to that employee must state the number of hours worked by the employee during each day when the employee started and ceased work.
Regulation 131F provides that, if the award provides for the rate of remuneration of the employee, the record relating to that employee must state the rate of remuneration at which the employee is paid including the gross and net amounts paid and the deductions, if any, made from that remuneration.
Regulation 131G provides that, if the award provides for leave of any kind, the record relating to that employee must state the leave taken by the employee, the employee's entitlement from time to time to the leave and the accrual of leave.
Regulation 131H provides that, if the award provides for superannuation contributions to be made by the employer for the benefit of the employee, the record relating to that employee must state a number of particulars concerning the basis for the election of a fund and the contributions to that fund.
Regulation 131J provides that, if the employee's employment is terminated, the record relating to that employee must state whether the termination was by consent, by notice or summarily and the name of the person who acted to terminate the employment.
Regulation 131K provides that an employer may only alter or allow a record to be altered in specified circumstances. Those circumstances are that an employer must correct any error in a record as soon as the employer becomes aware of the error and an employer who corrects an error must also record the nature of the error with the correction. A failure to comply with this provision is an offence with a penalty of $1,000.
Regulation 131L provides for inspection and copying of records. The regulation provides that an employer is to make a copy of a record available on request to an employee, a former employee to whom the record relates, an officer of an organisation authorised to inspect employer records for the purposes of ensuring observance of awards or an inspector. The regulation provides that failure to comply with the provision is an offence with a penalty of $1,000.
Regulation 131L further provides for the record to be made available immediately, if the records are kept on the same premises as the employee is located and, otherwise, within 14 days. The records are required to be made available in a legible form in the English language.
Regulation 131M provides that an employer is to assist a person entitled to inspect and copy a record by providing information concerning the location of the record. The regulation further provides that a person so entitled may interview the employer concerned about the record. The regulation provides that failure to comply with the provision is to be an offence with a penalty of $1,000.
Regulation 131N provides that, in the event of transfer or assignment of a business, records concerning employees who become employees of the new employer as a consequence of the transfer or assignment are to be transferred to the new employer. The new employer is required to keep the transferred records, however, the new employer is not required to make records of anything occurring in the course of an employee's entitlement with the former employer. Penalties of $1,000. are provided for breach of the regulation.
Regulation 131P provides that the Commission may certify that an award provision relating to records satisfies the relevant provisions of Part 9A. The regulation further provides for an extended meaning of "award" to include a relevant Commonwealth law and relevant administrative or industrial practices.
Regulation 131P further provides that a certificate issued by the Commission applies to an award only if the employer keeps records in accordance with the award.
Regulation 131Q provides an extended meaning of "record" for the purposes of a number of preceding regulations (regulations 131 K Contents of Records superannuation contributions; 131L Inspection and copying of records; 131M Information concerning records; 131N Transfer and assignment of business) by providing that a record is to be taken to include a record kept under a condition of an award if the Commission has issued a requisite certificate under regulation 131P (Award provisions relating to records).
Proposed regulation 131R provides for Crown immunity and that an act or omission on or before 1 December 1992 is not an offence under the Part.