STATUTORY RULES.
1941. No. 11.
REGULATIONS UNDER THE NATIONAL SECURITY ACT 1930-1940.*
I, THE GOVERNOR-GENERAL in and over the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the National Security Act 1939-1940.
Dated this twenty-third day of January, 1941.
GOWRIE
Governor-General.
By His Excellency’s Command,
A. FADDEN
Acting Minister of State for Defence Co-ordination.
Amendments of the National Security (Reinstatement in Civil Employment) Regulations.†
1. After regulation 2 of the National Security (Reinstatement in Civil Employment) Regulations the following regulation is inserted:—
Employer not to terminate employment by reason of liability of employee for war service.
“2a.—(1.) An employer shall not terminate the employment of any person employed by him for the reason that that person is or may become liable to perform any war service.
“(2.) In any proceedings for an offence in respect of a contravention of this regulation, where it is proved that the employment of any person who was or might have become liable to perform war service was terminated by his employer, it shall lie upon the employer to show that the employment of that person was terminated for some reason other than that he was or might have become liable to perform war service.”.
Reinstatement in employment of persons who have rendered war service.
2. Regulation 3 of the National Security (Reinstatement in Civil Employment) Regulations is amended by omitting from sub-regulation (1.) the words “commencement of such war service” and inserting in their stead the words “date upon which he volunteered for war service or received a notice requiring him to perform war service (as the case may be)”.
Repeal of regulation 5.
3. Regulation 5 of the National Security (Reinstatement, in Civil Employment.) Regulations is repealed.
* Notified in the Commonwealth Gazette on 20th January, 1941.
† Statutory Rules 1939, No. 176. as amended by Statutory Rules 1940, Nos. 63 and 103.
4. After regulation 6 of the National Security (Reinstatement in Civil Employment) Regulations, the following regulation is added:—
War service to be reckoned as service in employment.
“7.—(1.) Notwithstanding anything contained, in any law or in any award, order, determination or instrument whatever made or issued under that law, but subject to this regulation, all periods of war service (other than war service covered by paragraph (b) of the definition of ‘ war service ’ as defined in regulation 2 of those Regulations) of any person shall, for the purpose of determining the right of that person to leave of absence or pay in lieu of leave of absence in respect of his employment, be deemed to be service in his employment.
“(2.) For the purposes of this regulation, the periods of war service to be taken into account in relation to any person in any period of service in his employment (not exceeding twelve months) in respect of which ho is entitled to leave of absence or pay in lieu thereof, shall not exceed, in the aggregate, ninety days; but where the periods of war service in any such period of service in employment of any person exceed ninety days in the aggregate, the continuity of the employment of the person shall not be deemed to be broken by reason of his absence from employment on the days so in excess.”.
By Authority: L. F. Johnston, Commonwealth Government Printer, Canberra.
Overview
The Statutory Rules 1941 No. 11, made under the National Security Act 1939-1940, were enacted to address the immediate need for regulations governing the employment rights of individuals liable for war service during World War II. The National Security (Reinstatement in Civil Employment) Regulations were introduced to ensure that employees who were or might become liable for war service were not unfairly terminated and to reinstate those who had already been called to service back into their civil employment. This was achieved by amending and adding new regulations to the existing framework, which aimed to protect the employment continuity of these individuals. The regulations were issued by the Governor-General in Council, acting on the advice of the Acting Minister of State for Defence Co-ordination, reflecting the policy objective of maintaining workforce stability amidst the demands of wartime national security.
Scope and Application
The Statutory Rules 1941 No. 11 made under the National Security Act 1939-1940 address the reinstatement of individuals in civil employment who have been called to perform war service. These regulations apply to employers and employees within the Commonwealth of Australia, providing protections and obligations related to employment continuity and reinstatement for those who serve in the war effort. Specifically, the regulations prohibit employers from terminating the employment of individuals who are or may become liable for war service, and require that war service be treated as service in employment for the purposes of leave and pay entitlements, up to a maximum of ninety days within any twelve-month period of employment. The regulations amend and repeal certain provisions of the earlier National Security (Reinstatement in Civil Employment) Regulations, ensuring that the rights and protections of employees who serve in war are clearly defined and enforced.
Key Provisions
The Regulations under the National Security Act 1939-1940 introduce several key provisions concerning the employment rights of individuals who may be liable for war service (regulation 2a). Firstly, employers are prohibited from terminating the employment of any person based solely on the fact that they may be liable for war service (regulation 2a(1)). This means that employers must not dismiss employees who are called up for war service or who might be required to serve in the future. In any legal proceedings related to a breach of this regulation, it is the employer's responsibility to demonstrate that the employment termination was for reasons unrelated to the employee's war service liability (regulation 2a(2)).
Additionally, these Regulations amend the definition of the period during which an individual is considered to have been employed for the purpose of reinstatement and leave entitlements. Specifically, regulation 3 now considers the employment period to start from the date the person volunteered for war service or received a notice requiring them to perform war service, rather than from the commencement of the war service itself. This change aims to ensure that individuals who have served in the war are reinstated to their employment from the correct starting point, thereby maintaining their employment continuity (regulation 3).
Regulation 7 further clarifies that periods of war service are to be treated as service in employment for the purposes of determining the right to leave of absence or pay in lieu of leave. However, these periods are capped at a maximum of ninety days within any twelve-month employment period. This provision ensures that individuals who have served in the war can receive appropriate leave entitlements while preventing the abuse of this provision by counting excessive war service periods as employment time (regulation 7).
The Regulations also impose specific obligations on employers. They must adhere to the provisions outlined in regulations 2a, 3, and 7, ensuring that they do not terminate the employment of individuals liable for war service and that they correctly account for war service periods when determining leave entitlements. Employers found in breach of these obligations may face legal consequences.
In terms of penalties and consequences, the Regulations do not explicitly detail the specific penalties for breaches. However, under the National Security Act 1939-1940, general provisions regarding penalties for breaches of regulations made under this Act apply. Typically, breaches may result in fines, imprisonment, or both, depending on the severity of the offence and the specific provisions breached. The exact penalties would be determined by the courts based on the circumstances of each case.