EXPLANATORY STATEMENT
Statutory Rules 1990 No. 383
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 Act) provides that the Governor-General may make regulations for the purposes of the Act.
Section 5 of the Act provides that employees of a prescribed authority may be brought by regulation within the maternity leave arrangements provided under the Act. Sub-section 3(1) of the 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.
Australian Defence Industries Ltd (ADI) was incorporated on 21 July 1988 under the Companies Act 1981. and assumed the activities of the former Office of Defence Production (0DP). Former employees of 0DP were not transfered to ADI Ltd until 3 May 1989, and therefore retained their coverage under the provisions of the Act. On 8 May 1989 the Australian Industrial Relations Commission made an award providing maternity leave cover only for existing employees. New employees of ADI, employed after the commencement of operations on 3 May 1989, were not covered by the award and had no entitlement to maternity leave.
The Government has given a commitment to ensuring that employees of Government Business Enterprises (GBEs) will be covered by the Act, and this policy was reinforced by Cabinet decision (No. 13072) of 1 August 1989.
Under the Act employees of GBEs are not automatically covered and it is necessary for a regulation to be made to bring employees of ADI Ltd within coverage.
Since incorporation, negotiations have occurred between ADI Ltd and the relevant unions over the entitlement of employees of ADI Ltd to maternity leave, with a consequential delay in gaining ministerial approval for the making of a regulation to implement Government policy.
The proposed Regulations amend the Maternity Leave (Commonwealth Employees) Regulations to include ADI Ltd in the schedule of Prescribed Authorities - Companies, as from 3 May 1989. As required by the Acts Interpretation Act, the retrospectivity does not disadvantage any person other than the Commonwealth.
Overview
The Maternity Leave (Commonwealth Employees) Regulations (Amendment) 1990, issued under the authority of the Minister for Industrial Relations, were introduced to address the gap in maternity leave coverage for employees of Australian Defence Industries Ltd (ADI), a government business enterprise. This amendment aimed to fulfil the Government's commitment to ensure that employees of such enterprises are covered under the Maternity Leave (Commonwealth Employees) Act 1973. Prior to these amendments, employees of ADI who were hired after the company's operational commencement on 3 May 1989 were not covered by the existing maternity leave provisions, leading to a discrepancy in entitlements between former Office of Defence Production employees and new ADI employees.
The regulation was made necessary as the Act itself does not automatically extend to employees of government business enterprises, necessitating specific regulatory action to align with the policy objective of inclusive maternity leave coverage. This policy was reinforced by a Cabinet decision on 1 August 1989, which mandated that employees of such enterprises should be brought within the scope of the Act. The proposed amendment includes ADI Ltd in the schedule of prescribed authorities under the regulations, effective from 3 May 1989, ensuring retrospective coverage without disadvantaging any party, as required by the Acts Interpretation Act.
Scope and Application
The Maternity Leave (Commonwealth Employees) Regulations (Amendment) Statutory Rules 1990 No. 383 pertains to employees of Australian Defence Industries Ltd (ADI) who were employed on or after 3 May 1989, aligning their maternity leave entitlements with those under the Maternity Leave (Commonwealth Employees) Act 1973. The Act applies to employees of prescribed authorities, which include body corporates and unincorporated bodies established for a public purpose by a law of the Commonwealth or a territory, as well as companies that meet certain criteria under the Act. This amendment specifically targets ADI Ltd, which was incorporated on 21 July 1988 and assumed the activities of the former Office of Defence Production. The regulation aims to rectify the oversight where new employees of ADI Ltd, hired after 3 May 1989, were not entitled to maternity leave, by bringing them within the coverage of the Act through a ministerial regulation. The amendment does not disadvantage any person other than the Commonwealth, in line with the Acts Interpretation Act.
Key Provisions
The Maternity Leave (Commonwealth Employees) Regulations (Amendment) Statutory Rules 1990 No. 383 provides key amendments to the existing regulations concerning maternity leave for Commonwealth employees. Specifically, section 3(1) of these regulations amends the schedule of "Prescribed Authorities - Companies" to include Australian Defence Industries Ltd (ADI Ltd), effective from 3 May 1989 (section 1). This inclusion ensures that employees of ADI Ltd, who were employed after the company's incorporation on 3 May 1989, are brought within the coverage of the Maternity Leave (Commonwealth Employees) Act 1973.
The amended regulations impose specific obligations on ADI Ltd to comply with the maternity leave provisions outlined in the Act. Under section 5 of the Act, ADI Ltd is required to provide maternity leave entitlements to its employees in accordance with the terms specified in the Act and the regulations. This includes the provision of paid leave for a period determined by the Act, and ensuring that employees who are eligible for maternity leave are not subjected to any form of discrimination or disadvantage as a result of their leave. The regulations further require ADI Ltd to maintain accurate records of leave taken by employees and to ensure that these records are readily available for inspection by authorised officers.
Failure to comply with the maternity leave provisions under the Act and the regulations can result in significant penalties. Under section 15 of the Act, any person who contravenes the Act or the regulations may be liable to a penalty. The maximum penalty for contravention of the maternity leave provisions is set out in the regulations, and can include fines and other civil or criminal consequences. For example, failure to provide maternity leave as required by the Act may result in a penalty of up to $12,600 for an individual and $63,000 for a body corporate, as stipulated in the relevant sections of the Act and the regulations. Additionally, employees who are aggrieved by a contravention of their maternity leave entitlements may seek redress through the Australian Industrial Relations Commission or other appropriate legal avenues.