EXPLANATORY STATEMENT
Statutory Rules 1988 No 358
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.
Section 3 of the ML Act is amended by Part III of the OTC (Conversion into Public Company) Act 1988 (the OTC Act) by inserting a revised definition of “prescribed authority” which provides that:
(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 to which this paragraph applies.
The revised definition of “prescribed authority” came into effect from the date the OTC Act received the Royal Assent.
OTC is currently a “prescribed authority” within the meaning of the ML Act by virtue of its status as a body corporate established by a law of the Commonwealth, to be a body corporate for the purposes of the definition of “prescribed authority” in paragraph (a) of the definition of “prescribed authority” in section 3 of the ML Act. The effect of this is that OTC employees accrue rights under the ML Act.
Section 11 of the OTC (Conversion into Public Company) Act 1988 amends the enabling legislation of OTC, the OTC Act 1946, by inserting Part IIB which has the effect of converting OTC into a public company registered under the Companies Act 1981 by the name OTC Limited. Section 11 of the OTC (Conversion into Public Company) Act 1988 commences on a day to be fixed by Proclamation.
On OTC’s conversion to a public company it will cease to be a “prescribed authority” under the ML Act. To maintain the coverage of OTC employees under the ML Act it is necessary that a regulation declare OTC Limited to be a body corporate under paragraph (c) of the definition of “prescribed authority” in section 3 of that Act. This places OTC Limited within the definition of “prescribed authority”.
The amendment to Regulation 4 of the Maternity Leave (Commonwealth Employees) Regulations declares OTC Limited to be a body corporate for the purposes of the definition of “prescribed authority” in section 3 of the ML Act. This Regulation commences on the day on which section 11 of the OTC (Conversion into Public Company) Act 1988 commences.
Overview
The Maternity Leave (Commonwealth Employees) Regulations (Amendment) Statutory Rules 1988 No 358, issued by the Authority of the Minister for Industrial Relations, amend the Maternity Leave (Commonwealth Employees) Act 1973 (ML Act) to address the gap that arises from the conversion of the Office of Transport and Communications (OTC) into a public company. This conversion, pursuant to the OTC (Conversion into Public Company) Act 1988, means that OTC will no longer be considered a "prescribed authority" under the ML Act, thus potentially excluding its employees from the benefits of the Act. To ensure that employees of OTC Limited, the new public company, continue to receive maternity leave benefits, the regulations declare OTC Limited to be a body corporate within the definition of "prescribed authority" under section 3 of the ML Act. The policy objective of these amendments is to maintain the continuity of maternity leave entitlements for OTC employees despite the structural change in the organisation.
Scope and Application
The Maternity Leave (Commonwealth Employees) Regulations (Amendment) Statutory Rules 1988 No 358 pertains to the amendment of the Maternity Leave (Commonwealth Employees) Act 1973 to accommodate the conversion of OTC into a public company, OTC Limited, under the OTC (Conversion into Public Company) Act 1988. This amendment ensures that the rights of employees under the ML Act are maintained despite OTC's structural change. The regulation redefines "prescribed authority" to include OTC Limited as a body corporate, aligning with the new status of OTC as a public company. This regulatory adjustment is critical to ensuring continuity in the application of the ML Act to OTC employees post-conversion. The amendment is effective from the date section 11 of the OTC (Conversion into Public Company) Act 1988 commences, as determined by a future Proclamation.
Key Provisions
The Maternity Leave (Commonwealth Employees) Regulations (Amendment) Statutory Rules 1988 No 358, as issued under the authority of the Minister for Industrial Relations, primarily amend the existing regulations to ensure continued coverage of employees under the Maternity Leave (Commonwealth Employees) Act 1973 (ML Act) following a significant structural change in the Organisation for the Transformation of Commerce (OTC). Section 11 of the OTC (Conversion into Public Company) Act 1988, which transforms OTC into a public company known as OTC Limited, necessitates these amendments to ensure the continued applicability of the ML Act to OTC employees. The amendment to Regulation 4 of the Maternity Leave (Commonwealth Employees) Regulations explicitly declares OTC Limited as a body corporate for the purposes of the definition of "prescribed authority" in section 3 of the ML Act. This amendment ensures that OTC Limited will be covered by the ML Act in the same manner as OTC was before its conversion.
The obligations imposed by these regulations primarily involve the declaration of OTC Limited as a "body corporate" under the ML Act. This declaration ensures that OTC Limited employees will continue to accrue rights and benefits under the ML Act, consistent with those enjoyed by employees of OTC prior to its conversion. The regulations must be made in accordance with section 15 of the ML Act and must not be inconsistent with the Act. The Minister for Industrial Relations has the authority to make these regulations under the enabling provisions of the ML Act, ensuring that the transition from OTC to OTC Limited does not disrupt the employment rights of its employees.
The consequences of non-compliance with these regulations are significant. If the regulations are not properly adhered to, it could lead to OTC Limited employees being deprived of their rights under the ML Act, potentially resulting in legal disputes and financial liabilities for the company. The penalties for non-compliance are not explicitly stated in the provided text, but under the general principles of administrative law and employment legislation, there could be civil consequences for the employer, including financial penalties and the requirement to compensate affected employees. Additionally, failure to comply with the Act and the regulations could lead to enforcement actions by the relevant authorities, potentially resulting in criminal charges against the company or its officers if the breach is deemed to be wilful or negligent.