EXPLANATORY STATEMENT
Statutory Rules 1989 No 130
Maternity Leave (Commonwealth Employees) Regulations (Amendment) (Issued by the Authority of the Minister for Industrial Relations)
Subsection 5(1) of the Maternity Leave (Commonwealth Employees) Act 1973 (the Act) provides
“5(1) Subject to this section, this Act applies to and in relation to:
(a) ...
(b) such other persons employed by the Commonwealth, and such persons employed by a prescribed authority, whether so employed under a law of the Commonwealth or of a Territory (other than the Northern Territory) or under a contract of service or apprenticeship, 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 the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Those persons prescribed in the Maternity Leave (Commonwealth Employees) Regulations include:
- Deputy President of the Australian Conciliation and Arbitration Commission; and
- Commissioner of the Australian Conciliation and Arbitration Commission.
With the proclamation of the Industrial Relations (Consequential Provisions) Act 1988 on 1 March 1989 the Australian Conciliation and Arbitration Commission was abolished and the Australian Industrial Relations Commission was created.
It has become apparent in the course of drafting the amendment that it is not possible to prescribe a Deputy President of the Australian Industrial Relations Commission for the purposes of paragraph 5(1)(b) of the Act.
This is because paragraph 5(3)(b) of the Act provides that the Act does not apply to or in relation to a person who is a Judge as defined by section 4 of the Judges’ Pensions Act 1968. Section 4 of that Act includes in the definition of a Judge a person who, by virtue of an Act, has the same status as a Justice or Judge of a federal court or of the Supreme Court of the Australian Capital Territory. Under section 9 of the Industrial Relations Act 1988 a Deputy President of the Australian Industrial Relations Commission has the same status as a Judge of a federal court.
Accordingly, only “Commissioner of the Australian Industrial Relations Commission” has been prescribed in regulations for the purposes of subsection 5(1) of the Act.
The amending regulations take effect from 1 March 1989 when the Australian Conciliation and Arbitration Commission was abolished and the Australian Industrial Relations Commission was established.
The retrospective application of the regulation will not affect the rights of a person (other than the Commonwealth) in a manner prejudicial to that person, nor does it impose any liability on such a person.