EXPLANATORY STATEMENT
(Issued by the authority of the Workplace Ombudsman)
Workplace Relations Act 1996
Directions to Inspectors
Background
By reason of amendments made to the Workplace Relations Act 1996 (the Act) by the Workplace Relations Amendment (A Stronger Safety Net) Act 2007 (the Safety Net Act), subsection 167(2) of the Workplace Relations Act 1996 (the Act) now empowers the Workplace Ombudsman to appoint workplace inspectors.
Under subsection 167(5) of the Act a person appointed as a workplace inspector has the powers and functions conferred on a workplace inspector by the Act or by the regulations or by another Act.
Also by reason of the Safety Net Act, subsection 167(7) of the Act requires workplace inspectors in the exercise of powers and the performing of functions to comply with directions made by the Workplace Ombudsman.
Prior to the making of these Directions workplace inspectors were required to comply with directions made by the Minister for Employment and Workplace Relations (the Minister) under Legislative Instrument F2006L00983. The Minister no longer has that power.
Legislative Instrument F2006L00983 required workplace inspectors to obtain the approval of:
- a SES officer in the Office of Workplace Services before commencing litigation in respect of certain provisions (known as proscribed provisions) of the Act or the Workplace Relations Regulations 1996; and
- a SES officer approved by the Group Manager of the Workplace Relations Implementation Group located within the Department in respect of certain provisions (known as non-proscribed provisions) of the Act or the Workplace Relations Regulations 1996.
These Directions will revoke and replace Legislative Instrument F2006L00983 to reflect changes to the powers of workplace inspectors, and the creation of the Office of the Workplace Ombudsman as a Statutory Agency, as a result of the Safety Net Act.
Consultation
No consultation was undertaken pursuant to section 17 of the Legislative Instruments Act 2003 because these Directions are unlikely to have a direct or substantial indirect, effect on business and are unlikely to restrict competition. The Directions are technical in nature and do not substantially alter existing arrangements.
Notes on clauses
Clause 1
This clause specifies when the Directions will commence. The Directions will commence on the day that they are registered on the Federal Register of Legislative Instruments.
Clause 2
This clause is a formal definitions provision. It provides definitions for commonly used words and phrases in the Directions. The Directions no longer draw a distinction between a ‘prescribed provision’ and a ‘non-prescribed provision’.
Clause 3
This clause applies to litigation action commenced or intervened in by workplace inspectors in respect of an alleged breach of the Act or Regulations. The clause identifies that the workplace inspector must obtain consent from the Workplace Ombudsman or an authorised SES officer before commencing or intervening in litigation.
Clause 4
This clause provides that a workplace inspector must not commence or intervene in litigation in respect of an alleged breach of a provision of the Act or the Regulations, which in the opinion of the SES officer approving the litigation is a trivial or minor contravention of the Act or the Regulations.
Overview
The Workplace Relations Amendment (A Stronger Safety Net) Act 2007 (the Safety Net Act) introduced amendments to the Workplace Relations Act 1996 (the Act), enabling the Workplace Ombudsman to appoint workplace inspectors and direct their actions. This shift in authority from the Minister for Employment and Workplace Relations to the Workplace Ombudsman, established as a statutory agency, was formalised through the Directions to Inspectors, issued under the Workplace Relations Act 1996. These directions were enacted to address the procedural changes resulting from the Safety Net Act, specifically updating the requirements for workplace inspectors to obtain approvals for litigation actions. Prior to these directions, workplace inspectors required approvals from SES officers within specific departments; however, these Directions now mandate that workplace inspectors must obtain consent from the Workplace Ombudsman or an authorised SES officer before commencing or intervening in litigation, reflecting the legislative changes and the new administrative structure.
Scope and Application
The Directions to Inspectors under the Workplace Relations Act 1996 apply to workplace inspectors appointed under the Act, who now derive their powers and functions from the Act, regulations, or other legislation. These Directions, which revoke and replace Legislative Instrument F2006L00983, outline the process for workplace inspectors to obtain consent for commencing or intervening in litigation concerning alleged breaches of the Act or the Workplace Relations Regulations 1996. The geographic reach of these Directions is national, applying to all workplace inspectors across Australia. The Directions require that workplace inspectors must obtain consent from the Workplace Ombudsman or an authorised Senior Executive Service (SES) officer before initiating or intervening in litigation. The Directions also specify that a workplace inspector must not commence or intervene in litigation if the alleged breach is deemed trivial or minor by an SES officer. This legislative instrument is technical in nature and does not substantially alter existing arrangements, with no consultation required due to its limited effect on business and competition.
Key Provisions
The Workplace Relations Act 1996, amended by the Workplace Relations Amendment (A Stronger Safety Net) Act 2007, grants the Workplace Ombudsman the authority to appoint workplace inspectors under section 167(2). These inspectors are empowered with the duties and functions outlined in the Act, regulations, or any other applicable legislation, as stated in section 167(5). Furthermore, section 167(7) mandates that inspectors must adhere to any directives issued by the Workplace Ombudsman when exercising their powers and duties. Previously, workplace inspectors were required to obtain approval from the Minister for Employment and Workplace Relations under Legislative Instrument F2006L00983 before initiating legal proceedings concerning specific provisions of the Act or the Workplace Relations Regulations 1996. However, these Directions, issued by the Workplace Ombudsman, replace and revoke the previous instrument to align with the updated powers of workplace inspectors and the establishment of the Office of the Workplace Ombudsman.
Under these Directions, workplace inspectors are now required to obtain consent from the Workplace Ombudsman or an authorised Senior Executive Service (SES) officer before initiating or intervening in litigation actions concerning alleged breaches of the Act or the Regulations, as outlined in clause 3. This change streamlines the process by eliminating the need for dual approvals previously required for certain litigation actions. Moreover, clause 4 stipulates that a workplace inspector must not initiate or intervene in litigation if the alleged breach is deemed trivial or minor by the SES officer approving the litigation. The Directions also eliminate the distinction between 'prescribed provisions' and 'non-prescribed provisions' that was previously in place.
The Obligations imposed by these Directions are primarily focused on ensuring that workplace inspectors act within the bounds of their authority and in compliance with the directives issued by the Workplace Ombudsman. Inspectors must seek and obtain necessary approvals before initiating or intervening in litigation actions, ensuring that such actions are warranted and not trivial or minor. Additionally, the requirement to obtain consent from the Workplace Ombudsman or an authorised SES officer before initiating litigation ensures that actions taken are in line with the overarching objectives of the Act and the Workplace Relations Regulations 1996.
In terms of consequences for non-compliance, the Directions do not explicitly outline specific offences, penalties, or civil/criminal consequences. However, failure to comply with the Directions could potentially result in actions being deemed invalid or could undermine the authority of the Workplace Ombudsman. Inspectors who act without proper approval or in disregard of the directives may face internal disciplinary actions or other repercussions as determined by the Workplace Ombudsman. While the Directions themselves do not specify maximum penalties, any breaches of the Workplace Relations Act 1996 or the Workplace Relations Regulations 1996 could incur penalties as outlined in those primary pieces of legislation.