EXPLANATORY STATEMENT
Statutory Rules 1989 No 148
Maternity Leave (Commonwealth Employees)
Regulations (Amendment)
(Issued by the Authority of the Minister for Industrial Relations)
Section 15 of the Maternity Leave (Commonwealth Employees) Act 1973 (the ML Act) provides:
“The Governor-General may make regulations, not inconsistent with this 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”.
By force of section 5 of the ML Act, prescribed employees of a “prescribed authority” are covered by the maternity leave arrangements provided under the Act. Sub-section 3(1) of the ML Act defines “prescribed authority” as:
(a) a body corporate (other than an incorporated company, society or association) that is incorporated for a public purpose by a law of the Commonwealth or of a Territory (other than the Northern Territory) and is declared by the regulations to be a body corporate in relation to which this Act applies;
(b) an unincorporated body that is established for a public purpose by a law of the Commonwealth or of a Territory (other than the Northern Territory) and is declared by the regulations to be an unincorporated body in relation to which this Act applies; or
(c) a company that:
(i) is incorporated under a law of the Commonwealth or a law in force in a State or Territory;
(ii) is a trading corporation, or a financial corporation, within the meaning of paragraph 51(20) of the Constitution; and
(iii) is declared by the regulations to be a body corporate in relation to which this Act applies.
The ANL (Conversion into Public Company) Act 1988 amended the enabling legislation (the Australian Shipping Commission Act 1956) of the Australian Shipping Commission, which traded as the Australian National Line. The Commission was converted into a public company registered in the Australian Capital Territory under the Companies Act 1981 by the name of ANL Limited. This took effect on 1 July 1989.
The Snowy Mountains Engineering Corporation (Conversion into Public Company) Act 1989 amended the enabling legislation (the Snowy Mountains Engineering Corporation Act 1970) of the Snowy Mountains Engineering Corporation. The Corporation was converted into a public company registered in the Australian Capital Territory under the Companies Act 1981 by the name of Snowy Mountains Engineering Corporation Limited. This also took effect on 1 July 1989.
Employees of the Australian Shipping Commission and the Snowy Mountains Engineering Corporation (the organisations) were covered by the provisions of the ML Act before the conversion of the organisations into public companies. This resulted from regulations under the ML Act which brought each of the organisations within the scope of the ML Act as a “prescribed authority”. Each had been declared to be a body corporate for the purposes of the definition of “prescribed authority” in paragraph 3(1)(a) of the ML Act. Paragraph (a) of regulation 6 deems a person who constitutes, or is a member of, or a person employed by such a body corporate to be a prescribed person for the purposes of the ML Act.
On conversion into a public company, however, each of the organisations ceased to be a “prescribed authority” for the purposes of the ML Act. Accordingly, in order to continue the application of the ML Act to persons who were employed by the organisations at the time of their conversion to public companies, further regulations were necessary.
Under each of the Acts which made the organisations public companies, provision is made for the employees of the organisations to continue to be employed by the companies. The amending regulations provide for the application of the ML Act only to those persons. New employees are intended to be covered, for the purposes of entitlement to maternity leave, by other means, eg, awards or State legislation.
This is achieved by:
- declaring Snowy Mountains Engineering Corporation Limited (SMEC) and ANL Limited to be bodies corporate for the purposes of the definition of “prescribed authority” in sub-section 3(1)(c);
- prescribing only those persons whose employment was transferred from the organisations to the companies following their incorporation.
The Statutory Rules took effect on 1 July 1989 when the organisations were incorporated.