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.
Overview
The Workplace Relations Act 1996 (the Act) was enacted to provide a framework for the regulation of workplace relations in Australia, including the establishment of workplace inspectors to enforce compliance with the Act and related regulations. The Act empowers the Minister for Employment and Workplace Relations to appoint workplace inspectors and give them specific directions on how to exercise their powers and functions. Legislative Instrument F2006L00983, titled "Revocation of Directions and Directions to Inspectors," was introduced to replace and revoke the previous legislative instrument F2005L01213, in light of amendments made by the Workplace Relations Amendment (Work Choices) Act 2005 and subsequent regulations. This legislative instrument was registered on the Federal Register of Legislative Instruments on 25 May 2005 and is intended to reflect changes to the powers of workplace inspectors and the creation of the Office of Workplace Services as an Executive Agency. The policy objective of these Directions is to streamline and clarify the process for workplace inspectors in initiating litigation, specifying the conditions under which they must seek approval from Departmental managers and the circumstances in which litigation should not proceed if deemed trivial or minor.
Scope and Application
The Revocation of Directions and Directions to Inspectors under the Workplace Relations Act 1996 governs the manner in which workplace inspectors appointed by the Minister for Employment and Workplace Relations exercise their powers, particularly in relation to litigation. These Directions revoke and replace previous legislative instruments to reflect changes brought about by the Workplace Relations Amendment (Work Choices) Act 2005 and the Workplace Relations Regulations 2006. They apply to workplace inspectors who are empowered to bring proceedings under the Act or the Regulations. The Directions specify the types of provisions, termed 'prescribed provisions', in relation to which inspectors must obtain approval before commencing litigation. This includes provisions concerning awards, workplace agreements, wage rates, employment contracts, public holidays, and employee records, among others. The Directions outline the specific Senior Executive Service (SES) officers who can approve litigation actions, distinguishing between those for prescribed provisions and other provisions of the Act or Regulations. Importantly, the Directions prohibit workplace inspectors from initiating or intervening in litigation deemed trivial or minor by the approving SES officer. These Directions apply nationally as a Commonwealth instrument and are technical in nature, with no substantial impact on business or competition, hence consultation was not deemed necessary.
Key Provisions
The primary operative sections of this legislation pertain to the revocation of previous directions and the introduction of new directives governing workplace inspectors. Specifically, section 167(2) of the Workplace Relations Act 1996, which empowers the Minister for Employment and Workplace Relations to appoint workplace inspectors, is foundational. Under section 167(7), the Minister has the authority to issue directions specifying how, and under what conditions, these inspectors' powers and functions are exercised. These directions were previously encapsulated in Legislative Instrument F2005L01213, which required workplace inspectors to seek approval from Departmental managers before initiating litigation concerning certain provisions of the Act. The new directions, as outlined in clause 2, aim to reflect changes in the inspectors' powers and the creation of the Office of Workplace Services as an Executive Agency, following the Workplace Relations Amendment (Work Choices) Act 2005 and the Workplace Relations Regulations 2006.
The new obligations imposed by these directions include a more streamlined approval process for litigation by workplace inspectors. According to clause 3, inspectors must obtain approval from designated SES officers before commencing litigation related to prescribed provisions. These provisions encompass matters such as awards, workplace agreements, wage rates, employment contracts, and termination of employment, among others. Clause 4 stipulates that for litigation concerning provisions other than the prescribed ones, SES officers must also provide approval. However, clause 5 adds a layer of discretion by allowing SES officers to decline approval for litigation they deem trivial or minor. Similarly, clause 6 extends this discretion to cases involving section 365 of the Act, ensuring that only significant matters proceed to litigation.
In terms of consequences for non-compliance, the legislation does not explicitly outline offences, penalties, or specific legal repercussions for breaches of these directives. However, the requirement for SES officer approval before litigation suggests that failure to adhere to these provisions could lead to procedural invalidation of the litigation. This would mean that any legal action taken without proper approval might be dismissed on technical grounds, potentially leading to wasted legal resources and procedural delays. Additionally, workplace inspectors found to be acting in violation of these directions could face disciplinary actions from their employing body, although these are not explicitly detailed in the provided text.