EXPLANATORY STATEMENT
Statutory Rules 1989 No 148
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”.
By force of section 5 of the ML Act, prescribed employees of a “prescribed authority” are covered by the maternity leave arrangements provided under the Act. Sub-section 3(1) of the ML 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.
The ANL (Conversion into Public Company) Act 1988 amended the enabling legislation (the Australian Shipping Commission Act 1956) of the Australian Shipping Commission, which traded as the Australian National Line. The Commission was converted into a public company registered in the Australian Capital Territory under the Companies Act 1981 by the name of ANL Limited. This took effect on 1 July 1989.
The Snowy Mountains Engineering Corporation (Conversion into Public Company) Act 1989 amended the enabling legislation (the Snowy Mountains Engineering Corporation Act 1970) of the Snowy Mountains Engineering Corporation. The Corporation was converted into a public company registered in the Australian Capital Territory under the Companies Act 1981 by the name of Snowy Mountains Engineering Corporation Limited. This also took effect on 1 July 1989.
Employees of the Australian Shipping Commission and the Snowy Mountains Engineering Corporation (the organisations) were covered by the provisions of the ML Act before the conversion of the organisations into public companies. This resulted from regulations under the ML Act which brought each of the organisations within the scope of the ML Act as a “prescribed authority”. Each had been declared to be a body corporate for the purposes of the definition of “prescribed authority” in paragraph 3(1)(a) of the ML Act. Paragraph (a) of regulation 6 deems a person who constitutes, or is a member of, or a person employed by such a body corporate to be a prescribed person for the purposes of the ML Act.
On conversion into a public company, however, each of the organisations ceased to be a “prescribed authority” for the purposes of the ML Act. Accordingly, in order to continue the application of the ML Act to persons who were employed by the organisations at the time of their conversion to public companies, further regulations were necessary.
Under each of the Acts which made the organisations public companies, provision is made for the employees of the organisations to continue to be employed by the companies. The amending regulations provide for the application of the ML Act only to those persons. New employees are intended to be covered, for the purposes of entitlement to maternity leave, by other means, eg, awards or State legislation.
This is achieved by:
- declaring Snowy Mountains Engineering Corporation Limited (SMEC) and ANL Limited to be bodies corporate for the purposes of the definition of “prescribed authority” in sub-section 3(1)(c);
- prescribing only those persons whose employment was transferred from the organisations to the companies following their incorporation.
The Statutory Rules took effect on 1 July 1989 when the organisations were incorporated.
Overview
The Maternity Leave (Commonwealth Employees) Regulations (Amendment) 1989 was introduced to address the gap in maternity leave coverage for employees of the Australian Shipping Commission and the Snowy Mountains Engineering Corporation following their conversion into public companies. Enacted by the Parliament of Australia, these regulations amend the existing Maternity Leave (Commonwealth Employees) Act 1973. The objective of this amendment is to ensure that employees who were covered under the Maternity Leave Act prior to the conversion of these organisations into public companies continue to be eligible for maternity leave benefits. This was achieved by specifically declaring the newly formed public companies, Snowy Mountains Engineering Corporation Limited and ANL Limited, as bodies corporate under the definition of "prescribed authority" in the Act, and by limiting the scope of the regulations to those employees whose employment was transferred from the old organisations to the new companies.
Scope and Application
The Maternity Leave (Commonwealth Employees) Regulations (Amendment) Statutory Rules 1989 No 148, issued by the authority of the Minister for Industrial Relations, are designed to ensure the continued application of the Maternity Leave (Commonwealth Employees) Act 1973 (ML Act) to certain employees following the conversion of the Australian Shipping Commission and the Snowy Mountains Engineering Corporation into public companies. The amendment responds to the structural changes mandated by the ANL (Conversion into Public Company) Act 1988 and the Snowy Mountains Engineering Corporation (Conversion into Public Company) Act 1989, which transformed these entities into public companies, thereby altering their legal status. The regulations address the transition by deeming the newly formed public companies, ANL Limited and Snowy Mountains Engineering Corporation Limited, as "bodies corporate" under subsection 3(1)(c) of the ML Act, thereby ensuring that the Act continues to apply to those employees whose employment was transferred from the former organisations to the new companies. These regulations were issued to maintain continuity in the entitlement to maternity leave for existing employees, while new employees would be covered under other means such as awards or state legislation. The amendment took effect on 1 July 1989, aligning with the date when the organisations were incorporated as public companies.
Key Provisions
The Maternity Leave (Commonwealth Employees) Regulations (Amendment) Statutory Rules 1989 No 148 primarily modify existing regulations under the Maternity Leave (Commonwealth Employees) Act 1973 (ML Act) to ensure that employees of the Australian Shipping Commission and the Snowy Mountains Engineering Corporation, who were already covered by the ML Act, continue to be eligible for maternity leave following the conversion of these entities into public companies. These amendments are essential to maintain the continuity of maternity leave entitlements for existing employees as per section 15 of the ML Act (section 15). The regulations specifically identify Snowy Mountains Engineering Corporation Limited (SMEC) and ANL Limited as "prescribed authorities" under sub-section 3(1)(c) of the ML Act, thereby ensuring these entities fall within the scope of the Act (regulation 6). This ensures that employees who were transferred to these newly formed companies following their incorporation remain covered by the Act.
The obligations imposed by these regulations on the parties involved are primarily concerned with ensuring that the transition from the former entities to the new public companies does not disrupt the maternity leave entitlements of existing employees. This includes the requirement for SMEC and ANL Limited to adhere to the maternity leave provisions outlined in the ML Act, as well as any other related obligations such as record-keeping and reporting as stipulated by the Act (section 15). The regulations are designed to maintain the status quo for employees who were already covered by the ML Act, ensuring their rights and entitlements are not compromised by the organisational changes.
Breach of the provisions set out in these regulations could potentially lead to legal consequences for the companies involved. Although the specific penalties are not detailed in the explanatory statement, breaches of the ML Act generally could result in enforcement actions by the relevant authorities. Such actions might include fines or other penalties as prescribed by the Act. Employees who believe their rights under the ML Act have been infringed upon could also seek redress through the Fair Work Commission or other appropriate legal channels. It is important for SMEC and ANL Limited to comply with these regulations to avoid any adverse legal or financial repercussions.