Workplace Relations Amendment Regulations 2003 (No. 4) 2003 No. 350
EXPLANATORY STATEMENT
Statutory Rules 2003 No. 350
Issued by the authority of the Minister for Employment and Workplace Relations
WORKPLACE RELATIONS AMENDMENT REGULATIONS 2003 (No. 4)
Subsection 359(1) of the Workplace Relations Act 1996 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Workplace Relations Amendment (Improved Protection for Victorian Workers) Act 2003 (the Amendment Act) amends the Act to, among other matters, enable the Australian Industrial Relations Commission (AIRC) to declare existing federal awards to be common rules in Victoria.
Common rule awards apply to all employers in an industry, rather than only applying to named employers, or employers who are members of named employer organisations. Currently, under the Act, federal common rule awards can be made for employment in the Territories, or in Commonwealth public sector employment.
In May 2003, the Victorian Parliament enacted the Federal Awards (Uniform System) Act 2003 (Vic) (the FA(US) Act). Section 52 of the FA(US) Act refers legislative power to the Commonwealth Parliament in relation to common rules. This provision commenced on 17 December 2003.
The purpose of the proposed Regulations is to prescribe requirements for appropriate notice to be given to all parties potentially affected by applications for common rules in Victoria.
These Regulations amend the Workplace Relations Regulations 1996 (the Principal Regulations) to prescribe requirements for the publication and giving of notices as provided for by subsection 493A(3) of the Act. Subsection 493A(3), which was inserted into the Act by the Amendment Act, states:
`(3) To avoid doubt, regulations prescribing requirements for any of the following:
(a) publication of a notice in accordance with paragraph 141(4)(a);
(b) giving notice of a place and time in accordance with subsection 142(3);
(c) publication of a notice in accordance with subsection 142(4);
may specify particular requirements for the publication, or the giving of notice, in accordance with paragraph 141(4)(a) or subsection 142(3) or (4) (as those provisions have effect because of subsection (2) of this section).'
Subsection 493A(3) clarifies the operation of the regulation-making power in section 359 of the Act.
Details of the proposed Regulations are attached.
The proposed Regulations will commence on 1 January 2004, to coincide with the commencement of relevant provisions of the Amendment Act.
ATTACHMENT
DETAILS OF THE PROPOSED WORKPLACE RELATIONS AMENDMENT REGULATIONS 2003 (No. 4)
Regulation 1
Proposed Regulation 1 would specify that the name of the Regulations is the Workplace Relations Amendment Regulations 2003 (No. 4)
Regulation 2
Proposed Regulation 2 would specify that the Regulations commence on 1 January 2004.
Regulation 3
Proposed Regulation 3 would provide that the Workplace Relations Regulations 1996 (the Principal Regulations) are amended as provided for in Schedule 1.
Schedule 1 - Amendments
Item 1
Item 1 would amend regulation 21 of the Principal Regulations. Regulation 21 currently provides for the publication by the Australian Industrial Relations Commission of notices of common rule hearing for the purposes of paragraph 141(4)(a) of the Workplace Relations Act 1996 (the Act).
Item 1 would amend Regulation 21 to provide that, during the first 12 months of the operation of common rules in Victoria, any notice published under the regulation must specify a period of at least 28 days between the publication of the notice and the relevant hearing.
Item 2
Item 2 would amend regulation 22 to remove the reference to `a Territory'. Regulation 22 applies in the case where an application has been made to vary the terms of an award that are a common rule. At present, it requires the AIRC to give notice of hearing of the proposed variation to certain representative organisations of employers and employees in the Australian Capital Territory and the Northern Territory. The reference to `a Territory' is not necessary for the proper construction of regulation 22 and it may cause confusion in light of the extension of the common rule provisions of the Act to Victoria.
Item 3
Item 3 would make a minor technical amendment to subparagraph 22(1)(c)(vi) of the Principal Regulations. This amendment is consequential upon the proposed insertion of subparagraph 22(1)(d) by item 4.
Item 4
Item 4 would amend regulation 22 to insert new paragraph 22(1)(d). Paragraph 22(1)(d) would provide that before the AIRC varies a term of an award that is a common rule for an industry in Victoria, it must provide notice of hearing to the representative organisations of employer and employee organisations specified in the subparagraph. New subparagraph 22(1)(d)(v) would allow the AIRC to notify any other organisation that it considers appropriate.
Item 5
Item 5 would substitute new regulation 23 for existing regulation 23. Regulation 23 provides for the publication of notices for the purposes of subsection 142(4) of the Act. Where the AIRC has varied a term of an award that is a common rule, subsection 142(4) requires a Registrar to immediately publish, as prescribed, a notice inviting any organisation or person interested and wanting to be heard to lodge notice of objection to the variation binding the organisation or person. New regulation 23 would require such a notice to be published:
• in the approved form;
• in the Gazette; and
• depending on the State or Territory in which the common rule operates - in a newspaper or newspapers circulating in the relevant State or Territory, and in any other