EXPLANATORY STATEMENT
STATUTORY RULES 1988 NO 28
Maternity Leave (Commonwealth Employees)
Regulations (Amendment)
(Issued by the authority of the Minister for Industrial Relations)
Paragraph 5(1)(b) of the Maternity Leave (Commonwealth Employees) Act 1973 (the Act) extends the Act’s application to, amongst others, such persons employed by a prescribed authority as are prescribed. “Prescribed authority” is defined in section 3 of the Act as including a body corporate declared by the regulations to be a body corporate in relation to which the Act applies.
Section 15 of the Act provides that 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.”.
Regulation 4 of the Maternity Leave (Commonwealth Employees) Regulations (the Regulations) provides that a body specified in Schedule 1 to the Regulations is a body corporate for the purposes of the definition of prescribed authorities in relation to the Act.
Regulation 6 of the Regulations provides that a prescribed person for the purposes of Paragraph 5(1)(b) of the Act, is amongst others, “a person who constitutes, or is a member of, or a person employed by, a body corporate or an unincorporated body referred to in regulation 4”.
The Regulations have been amended to prescribe, for maternity leave purposes, the Canberra Institute of the Arts which has been established as a body corporate by an Ordinance of the Australian Capital Territory. A person who is employed by the Institute will therefore be eligible for maternity leave coverage in accordance with paragraph 5(1)(b) of the Act.
The staff of the Canberra Institute of the Arts will include people who were previously employed in the Canberra School of Art and the Canberra School of Music, and who were previously covered by the provisions of the Act.
Overview
The Maternity Leave (Commonwealth Employees) Regulations (Amendment) 1988 was enacted to address the need to extend the provisions of the Maternity Leave (Commonwealth Employees) Act 1973 to cover employees of the Canberra Institute of the Arts, a body corporate established by an Ordinance of the Australian Capital Territory. This legislative amendment was issued by the authority of the Minister for Industrial Relations and aims to ensure that employees of this newly established institution are afforded the same maternity leave benefits as those employed by other prescribed authorities. By amending Regulation 4 of the original Maternity Leave (Commonwealth Employees) Regulations, the Canberra Institute of the Arts is now included in Schedule 1, thereby extending the Act’s coverage to its staff. This amendment aligns with the policy objective of providing consistent maternity leave entitlements across all Commonwealth entities, ensuring that the rights of employees are uniformly protected.
Scope and Application
The Maternity Leave (Commonwealth Employees) Act 1973 extends its provisions to employees of prescribed authorities, including those employed by bodies corporate that are declared by regulations to be subject to the Act. Section 5(1)(b) of the Act broadens its application to encompass individuals who are members of, or employed by, such prescribed authorities. The term "prescribed authority" is explicitly defined in section 3 of the Act, which includes any body corporate identified in the regulations. The Minister for Industrial Relations has the authority to issue regulations pursuant to section 15 of the Act, ensuring these regulations do not conflict with the Act and are necessary for its implementation. Regulation 4 of the Maternity Leave (Commonwealth Employees) Regulations designates specific bodies, such as the Canberra Institute of the Arts, as prescribed authorities by listing them in Schedule 1. Consequently, employees of these specified entities, including those of the Canberra Institute of the Arts, which was established as a body corporate under an Ordinance of the Australian Capital Territory, are now eligible for maternity leave benefits as stipulated in the Act. This amendment ensures that the staff of the Canberra Institute of the Arts, including those previously employed at the Canberra School of Art and the Canberra School of Music, are now covered under the maternity leave provisions of the Act.
Key Provisions
The Maternity Leave (Commonwealth Employees) Regulations (Amendment) extends the application of the Maternity Leave (Commonwealth Employees) Act 1973 to include the Canberra Institute of the Arts as a prescribed authority. This is in accordance with section 5(1)(b) of the Act, which applies to persons employed by prescribed authorities. A "prescribed authority" is defined in section 3 of the Act as a body corporate or unincorporated body that has been declared by the regulations to be subject to the Act. Regulation 4 of the Maternity Leave (Commonwealth Employees) Regulations specifies that a body listed in Schedule 1 is a body corporate for the purposes of the Act. Regulation 6 further defines a "prescribed person" as someone who is employed by a body corporate or unincorporated body listed in Regulation 4. With the recent amendment, the Canberra Institute of the Arts, established as a body corporate by an Ordinance of the Australian Capital Territory, is now included in Schedule 1 of the Regulations. Consequently, employees of the Institute are eligible for maternity leave under the provisions of the Act.
The Maternity Leave (Commonwealth Employees) Regulations (Amendment) imposes specific obligations on employers and employees affected by the changes. Employers, such as the Canberra Institute of the Arts, must ensure that all employees who are newly eligible for maternity leave under the Act are informed of their rights and entitlements. This includes providing written particulars of the employee's entitlements to maternity leave and other related provisions. Employees, on the other hand, must adhere to the procedures outlined in the Act and the Regulations for taking maternity leave. This includes notifying their employer of their intention to take leave and providing the necessary documentation to support their claim.
Failure to comply with the provisions of the Maternity Leave (Commonwealth Employees) Act 1973 and the amended Maternity Leave (Commonwealth Employees) Regulations can result in various consequences. For employers, non-compliance can lead to civil penalties, including fines, as stipulated under the Fair Work Act 2009. In more severe cases, employers may face legal action from employees who have been denied their rights under the Act. Employees who are denied their maternity leave entitlements may also seek remedies through the Fair Work Commission. The maximum penalties for contravening the Act can include fines of up to $21,000 for individuals and $105,000 for bodies corporate, depending on the severity and nature of the breach. These provisions underscore the importance of adhering to the statutory requirements to avoid potential legal and financial repercussions.