EXPLANATORY STATEMENT
(Issued by the authority of the Minister for Employment and Workplace Relations)
Workplace Relations Act 1996
Revocation of Directions and Directions to Inspectors
Background
Subsection 167(2) of the Workplace Relations Act 1996 (the Act) empowers the Minister for Employment and Workplace Relations (the Minister) to appoint workplace inspectors. Under
subsection 167(5) 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. Subsection 167(7) of the Act allows the Minister to give directions specifying the manner in which, and any conditions and qualifications subject to which, powers or functions conferred on workplace inspectors appointed under subsection 167(2) are to be exercised or performed. Subsection 167(8) of the Act requires workplace inspectors to comply with directions made by the Minister under subsection 167(7).
A Revocation of Directions and Directions to Inspectors was registered on the Federal Register of Legislative Instruments on 25 May 2005 as Legislative Instrument F2005L01213. Legislative Instrument F2005L01213 required workplace inspectors to obtain the approval of Departmental managers before commencing litigation in respect of certain provisions of the Act or the Workplace Relations Regulations 1996. These Directions will revoke and replace Legislative Instrument F2005L01213 to reflect changes to the powers of workplace inspectors, and the creation of the Office of Workplace Services as an Executive Agency, as a result of the Workplace Relations Amendment (Work Choices) Act 2005 and the Workplace Relations Regulations 2006 (the Regulations)
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, or on the day that the Office of Workplace Services becomes an Executive Agency, whichever is the later.
Clause 2
This clause is a formal definitions provision. It provides definitions for commonly used words and phrases in the Directions. In particular, the Directions define in respect of which provisions a workplace inspector is required to obtain approval by defining the meaning of ‘prescribed provision’.
‘Prescribed provision’ means any provision in the Act or the Regulations relating to: an award; a workplace agreement, other than the negotiation of an agreement; the Australian Fair Pay and Conditions Standard, including wage rates; a contract of employment; a notional agreement preserving State awards; a preserved State agreement; contract outworkers; public holidays; meal breaks; a pre-reform AWA; a pre-reform certified agreement; a transitional award; termination of employment; or records relating to employees; in relation to which a workplace inspector appointed under subsection 167(2) of the Act is empowered to bring proceedings.
Clause 3
This clause applies to litigation action commenced by workplace inspectors in respect of an alleged breach of a prescribed provision. The clause identifies which SES officers may approve the commencement of litigation.
Clause 4
This clause applies to litigation commenced by workplace inspectors in respect of an alleged breach of a provision of the Act or the regulations, other than a prescribed provision. This clause identifies which SES officers may approve the commencement of litigation.
Clause 5
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, other than a prescribed provision, which in the opinion of the SES officer approving the litigation is a trivial or minor contravention of the Act or the Regulations.
Clause 6
This clause provides that a workplace inspector must not commence or intervene in litigation which in the opinion of the SES officer approving the litigation is a trivial or minor contravention of section 365 of the Act.