EXPLANATORY STATEMENT
(Issued by the authority of the Secretary of the Department of Employment and Workplace Relations)
Workplace Relations Act 1996
Revocation of Directions and Directions to Inspectors
Background
Subsection 84(2) of the Workplace Relations Act 1996 (the Act) empowers the Minister for Employment and Workplace Relations (the Minister) to appoint inspectors. Under
subsection 84(4) a person appointed as an inspector has powers and functions in relation to the observance of the Act, awards and certified agreements. Subsection 84(5) 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 inspectors appointed under subsection 84(2) are to be exercised or performed. Subsection 84(6) of the Act requires inspectors to comply with such directions made by the Minister.
The Minster has delegated his power to give directions in relation to inspectors to the Secretary of the Department of Employment and Workplace Relations pursuant to section 348 of the Act.
Directions to Inspectors were published in Special Gazette No. S360 of 30 September 2002. Directions S.360 established a regime under which inspectors were required to obtain the approval of Departmental managers before making an application or seeking a penalty against a person in respect of certain provisions of the Act or the Workplace Relations Regulations 1996 (the Regulations). These Directions will revoke and replace Directions S.360. This will clarify the conditions and qualifications on inspectors’ powers.
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.
In particular, the Directions define when, and in respect of which provisions, an inspector is required to obtain approval by defining the meaning of ‘litigation action’ and ‘prescribed provision’.
- Litigation action is defined to mean the lodging with a court or Commission of the document or documents necessary to institute proceedings, whether civil or criminal, where the proceedings are instituted in the exercise of powers and the performance of functions under the Act or the Regulations. Litigation action does not include action taken by inspectors as preparation for the institution of proceedings such as, for example, investigating alleged breaches of the Act or the Regulations or the preparation of evidence.
- Prescribed provision means any provision in the Act or the Regulations relating to a breach of: an award; a common rule award; an agreement; a provision under Schedule 1A of the Act; or a provision under Part 9A or 9B of the Regulations; in relation to which an inspector appointed under subsection 84(2) of the Act is empowered to bring proceedings.
Clause 3
This clause applies only to inspectors appointed as Commonwealth employees under the Public Service Act 1999 (that is, inspectors appointed under paragraph 84(2)(a) of the Act) who are taking litigation action in respect of an alleged breach of a prescribed provision. The clause identifies which Departmental managers are responsible for approving litigation action in such cases.
A Commonwealth inspector would, for example, be required to seek approval under this clause when taking litigation action in relation to an alleged breach of a provision under Schedule 1A of the Act.
Clause 4
This clause applies only to inspectors appointed as other than Commonwealth employees under the Public Service Act 1999 (that is, inspectors appointed under paragraph 84(2)(b) of the Act) who are taking litigation action in respect of an alleged breach of a prescribed provision. These inspectors are generally employed by State or Territory government agencies. They are engaged to perform compliance functions in relation to the Act pursuant to a contractual arrangement between the State or Territory agency and the Department of Employment and Workplace Relations. This clause establishes which Departmental managers can approve litigation action in such cases.
A State or Territory inspector would, for example, be required to seek approval under this clause when taking litigation action in relation to an alleged breach of a common rule award.
Clause 5
This clause establishes which Departmental managers can approve litigation action taken by an inspector in respect of an alleged breach of any provision, other than a prescribed provision. The clause applies to both Commonwealth and State or Territory inspectors (that is, inspectors appointed under either paragraph 84(2)(a) or (b) of the Act).
An inspector would, for example, be required to seek approval under this clause when taking litigation action in respect of subsection 170NF(4) of the Act.
The different approval requirements provided for in clauses 3, 4 and 5 reflet the differing compliance responsibilities of areas within the Department of Employment and Workplace Relations.