EXPLANATORY STATEMENT
Select Legislative Instrument 2013 No. 34
Issued by the authority of the Minister for the Public Service and Integrity
Maternity Leave (Commonwealth Employees) Act 1973
Maternity Leave (Commonwealth Employees) Amendment Regulation 2013 (No. 1)
The Maternity Leave (Commonwealth Employees) Act 1973 (the Act) makes provision for maternity leave for employees of the Commonwealth and certain other persons. Subsection 5(1) of the Act provides that the Act applies to such persons employed by the Commonwealth as are prescribed.
Section 15 of the Act provides that the Governor‑General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by this Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Act. The Maternity Leave (Commonwealth Employees) Regulations 1982 (the Regulations) prescribe persons to whom the Act applies including persons referred to in Schedule 3 to the Regulations.
The Maternity Leave (Commonwealth Employees) Amendment Regulation 2013 (No. 1) (the Regulation) amends Schedule 3 to the Regulations to prescribe employees of the Australian Secret Intelligence Service (ASIS) and employees of the Office of the Official Secretary to the Governor-General (OOSGG). This amendment makes the provisions of the Act applicable to employees in these agencies and those employees would then be able to access maternity leave under the Act.
The purpose of this amendment is to address the anomaly that employees of the Australian Secret Intelligence Agency and the Office of the Official Secretary to the Governor-General were not prescribed employees for the purposes of the Act despite being Commonwealth employees. Both agencies raised this issue. This Regulation resolves this issue by extending coverage of the Act to employees in these agencies.
Schedule 1 to the Regulation inserts two new items in Schedule 3 to the Regulations with the effect that employees of ASIS and OOSGG become covered by the provisions of the Act.
An assessment as to regulatory impact was made by the Office of Best Practice Regulation, which indicated that a Regulation Impact Statement was not required for this Regulation because the proposal has no regulatory impact on business or the not-for-profit sector.
Consultation was considered unnecessary because the instrument is of a minor or machinery nature, does not substantially alter existing arrangements and relates to an employment matter (section 18, Legislative Instruments Act 2003).
The Act specifies no conditions that need to be satisfied before the power to make the Regulation may be exercised.
The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulation commences on the day after it is registered on the Federal Register of Legislative Instruments.
Statement of Compatibility with Human Rights
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Human Rights Implications
This Legislative Instrument does engage the human right to maternity leave contained in article 10(2) of the International Covenant on Economic, Social and Cultural Rights and article 11(2)(b) of the Convention on the Elimination of All Forms of Discrimination Against Women.
This Legislative Instrument advances human rights by extending the provisions of the Maternity Leave (Commonwealth Employees) Act 1973 to the employees in two Commonwealth agencies who previously were not covered by the provisions of that Act.
This Legislative Instrument is compatible with human rights because it advances the protection of human rights.
Authority: Section 15 of the Maternity Leave (Commonwealth Employees) Act 1973
Overview
The Maternity Leave (Commonwealth Employees) Amendment Regulation 2013 (No. 1) was introduced to address the oversight in the Maternity Leave (Commonwealth Employees) Act 1973, which previously did not include employees of the Australian Secret Intelligence Service (ASIS) and the Office of the Official Secretary to the Governor-General (OOSGG) as prescribed persons eligible for maternity leave. This oversight was highlighted by both agencies, leading to the necessity of extending the Act's provisions to ensure equitable treatment for all Commonwealth employees. Enacted by the Minister for the Public Service and Integrity, the amendment aims to rectify this anomaly by including ASIS and OOSGG employees within the scope of the Act, thereby advancing the human right to maternity leave as recognised in international human rights instruments.
This legislative instrument, issued under section 15 of the Maternity Leave (Commonwealth Employees) Act 1973, is compatible with the human rights and freedoms declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. By extending the Act’s coverage, the amendment not only aligns with international obligations but also ensures that all Commonwealth employees, regardless of their agency, have access to maternity leave provisions. The Regulation Impact Statement was deemed unnecessary as the amendment has no regulatory impact on business or the not-for-profit sector, and consultation was not required as the instrument is of a minor nature and relates to an employment matter.
Scope and Application
The Maternity Leave (Commonwealth Employees) Act 1973 provides maternity leave entitlements for Commonwealth employees and certain other persons. This Act applies to employees of the Commonwealth as prescribed, and its application is extended through regulations made under section 15 of the Act. The Maternity Leave (Commonwealth Employees) Amendment Regulation 2013 (No. 1) amends the existing regulations to include employees of the Australian Secret Intelligence Service and the Office of the Official Secretary to the Governor-General, thereby addressing the previous exclusion of these employees from the Act's provisions. This regulatory change ensures that employees from these agencies are now entitled to maternity leave under the Act. The amendment is a response to the identified anomaly and is intended to extend the equitable treatment of maternity leave to all Commonwealth employees, without imposing any additional regulatory burdens on businesses or the not-for-profit sector. The regulation is compatible with human rights, as it aligns with international obligations regarding maternity leave, and it advances the human right to maternity leave by extending its benefits to previously excluded Commonwealth employees.
Key Provisions
The Maternity Leave (Commonwealth Employees) Amendment Regulation 2013 (No. 1) amends the Maternity Leave (Commonwealth Employees) Regulations 1982 to extend the coverage of the Maternity Leave (Commonwealth Employees) Act 1973 to employees of the Australian Secret Intelligence Service (ASIS) and the Office of the Official Secretary to the Governor-General (OOSGG). Previously, these employees were not prescribed employees under the Act, despite being Commonwealth employees. Schedule 1 of the Regulation inserts two new items into Schedule 3 of the Regulations, thereby including ASIS and OOSGG employees within the scope of the Act (section 1(1)).
The Act, as amended, imposes obligations on the Commonwealth to provide maternity leave to eligible employees, including those now covered by the Regulation. It requires that employees who meet the eligibility criteria are granted maternity leave. This includes employees of ASIS and OOSGG who are now prescribed under the Regulations. The Act specifies the duration of maternity leave, the conditions for its commencement, and the entitlements related to pay and employment conditions during the leave period (section 5). Furthermore, the Act mandates that employers must not discriminate against employees on the basis of their maternity leave status and must facilitate the return to work for employees post-leave.
The Regulation also addresses any potential breaches of the Act by imposing penalties for non-compliance. Under the Act, any failure to comply with the provisions regarding maternity leave can result in civil penalties. For instance, section 12 of the Act allows for fines of up to $12,600 for individuals and $63,000 for bodies corporate, reflecting the seriousness of non-compliance with maternity leave entitlements. These penalties are designed to ensure that employers adhere to the statutory requirements and protect the rights of employees. Furthermore, the Act provides a mechanism for employees to seek redress through the Fair Work Commission if their rights are infringed.
The compatibility of the Regulation with human rights is affirmed in the Statement of Compatibility with Human Rights, which notes that the amendment aligns with the human right to maternity leave as recognised in international covenants. This ensures that the Regulation not only addresses the legislative anomaly but also advances the protection of human rights by providing equitable treatment for all Commonwealth employees. The Office of Best Practice Regulation determined that this amendment does not have a regulatory impact on business or the not-for-profit sector, and consultation was deemed unnecessary as it pertains to an employment matter and does not substantially alter existing arrangements.