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.
Overview
The Maternity Leave (Commonwealth Employees) Regulations (Amendment) 1989 were introduced to address the gap that arose following the abolition of the Australian Conciliation and Arbitration Commission and the establishment of the Australian Industrial Relations Commission on 1 March 1989. This legislative change was enacted to ensure the ongoing applicability of maternity leave provisions to employees of the Commonwealth and prescribed authorities, specifically addressing the prescription of roles under the amended structure. The regulations were issued by the authority of the Minister for Industrial Relations and are aligned with the objectives of the Maternity Leave (Commonwealth Employees) Act 1973, which seeks to provide fair maternity leave entitlements to eligible employees. These amendments ensure the continued relevance and effectiveness of the legislation in the new industrial relations framework.
Scope and Application
The Maternity Leave (Commonwealth Employees) Regulations (Amendment) Statutory Rules 1989 No 130, issued by the authority of the Minister for Industrial Relations, amends the application of the Maternity Leave (Commonwealth Employees) Act 1973. The Act applies to employees of the Commonwealth and prescribed authorities, including the Commissioner of the Australian Industrial Relations Commission, employed under a law of the Commonwealth or a Territory, or under a contract of service or apprenticeship. The geographic reach of the Act is national, applying to the Commonwealth and prescribed authorities across Australia, excluding the Northern Territory. The Act also allows for the Governor-General to make regulations necessary for carrying out the Act, with these regulations prescribing matters required or permitted by the Act. Notably, the amendment clarifies that the Act does not apply to a Deputy President of the Australian Industrial Relations Commission due to their status as a Judge under the Judges’ Pensions Act 1968, which conflicts with the Act's definition of who it applies to. These amending regulations took effect from 1 March 1989, the date the Australian Industrial Relations Commission was established, and do not adversely affect the rights or impose liabilities on persons other than the Commonwealth.
Key Provisions
The Maternity Leave (Commonwealth Employees) Regulations (Amendment) Statutory Rules 1989 No 130, issued under the authority of the Minister for Industrial Relations, primarily amend the Maternity Leave (Commonwealth Employees) Regulations to reflect changes brought about by the Industrial Relations (Consequential Provisions) Act 1988. This amendment specifically affects the prescribed authorities under subsection 5(1)(b) of the Maternity Leave (Commonwealth Employees) Act 1973 (the Act). Originally, the regulations included the Deputy President of the Australian Conciliation and Arbitration Commission, but due to the abolition of this Commission and the creation of the Australian Industrial Relations Commission, the Deputy President can no longer be prescribed under the Act. This is because the Act does not apply to individuals who hold the same status as a Judge under the Judges’ Pensions Act 1968, and the Deputy President of the Australian Industrial Relations Commission falls into this category. Therefore, the amendment prescribes only the Commissioner of the Australian Industrial Relations Commission for the purposes of subsection 5(1)(b) of the Act, effective from 1 March 1989.
The amendment imposes obligations on entities governed by the Act to ensure compliance with these changes. Specifically, it requires that the updated regulations are adhered to when determining the applicability of maternity leave provisions to employees of prescribed authorities. The regulations mandate that the Commissioner of the Australian Industrial Relations Commission be the only prescribed authority for the purposes of the Act, reflecting the structural changes in the industrial relations landscape following the establishment of the Australian Industrial Relations Commission. This change ensures that the application of the Act is aligned with the current institutional framework and prevents any potential legal inconsistencies or ambiguities.
Breaches of the Maternity Leave (Commonwealth Employees) Act 1973, including the prescribed regulations, may result in civil or criminal consequences. While the specific penalties for non-compliance are not detailed within the text provided, it is important to note that the Act is designed to protect the rights of Commonwealth employees regarding maternity leave. Failure to comply with the prescribed regulations could potentially lead to legal action, fines, or other civil penalties as determined by the relevant courts. The precise nature and extent of these penalties would be governed by the broader legal framework and any relevant case law interpreting the Act.