EXPLANATORY STATEMENT
Select Legislative Instrument 2005 No. 35
(Issued by the authority of the Minister for Employment and Workplace Relations)
Workplace Relations Act 1996
Workplace Relations Amendment Regulations 2005 (No. 1)
Section 359 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.
Section 170MN of the Act prohibits employees or organisations from taking industrial action to support or advance claims against the employer in respect of the employment of employees covered by the certified agreement prior to the nominal expiry date of that agreement.
Paragraph 170ND(b) provides that section 170MN a penalty provision for the purposes of Division 10 of Part VIB of the Act which concerns enforcement and remedies in relation to certified agreements.
Section 170NF of the Act provides that an eligible court may make an order imposing a penalty on a person who contravenes a penalty provision. An eligible court is defined by section 170NE to mean the Federal Court of Australia, a District, County or Local Court, or a magistrate’s court.
Subsection 170NF(4) lists those persons with standing to make an application to an eligible court for the imposition of a penalty. Those persons are: employees covered by the certified agreement, persons bound by the agreement (employers and organisations of employees may be so bound) and persons who are affected by the industrial action concerned. In addition, paragraph 170NF(4)(d) provides that such an application may be brought by, “any other person prescribed by the regulations”. Currently, no persons have been prescribed in the regulations.
The purpose of the Regulations is to prescribe inspectors appointed under subsection 84(2) of the Act as persons who may apply to an eligible court for an order imposing a penalty for contravention of section 170MN. This regulation is consistent with inspector’s powers and functions in relation to the observance of the Act, awards and certified agreements as provided for under subsection 84(4A) and section 86 of the Act. In addition to these general powers and functions, the Act also confers on inspectors specific powers and functions relating to compliance with the Act, awards, certified agreements and orders made by the Australian Industrial Relations Commission (the Commission). For example, section 178 of the Act enables inspectors to commence civil proceedings in a court in relation to a breach of an award, order of the Commission or a certified agreement.
The regulations prescribe inspectors for the purposes of paragraph 170NF(4)(d) of the Act.
The regulations commenced on registration on the Federal Register of Legislative Instruments.
Overview
The Workplace Relations Amendment Regulations 2005 (No. 1) were enacted to address the need for a clear and specific list of individuals and entities empowered to apply to an eligible court for the imposition of penalties related to industrial action under the Workplace Relations Act 1996. This legislative instrument was issued by the Minister for Employment and Workplace Relations under section 359 of the Act, which allows the Governor-General to make regulations necessary or convenient for carrying out the Act. The primary policy objective of these regulations is to enhance the enforcement mechanisms concerning industrial actions by providing inspectors with the authority to apply for penalties in cases of contraventions of specific sections of the Act, thus ensuring better compliance and adherence to workplace agreements. By prescribing inspectors as eligible applicants under paragraph 170NF(4)(d) of the Act, the regulations aim to streamline the process for seeking penalties, thereby reinforcing the integrity of certified agreements and the overall industrial relations framework.
Scope and Application
The Workplace Relations Amendment Regulations 2005 (No. 1) prescribe inspectors appointed under the Workplace Relations Act 1996 as persons who may apply to an eligible court for an order imposing a penalty for contravention of section 170MN of the Act. This regulation is designed to align with the inspectors' powers and functions concerning the observance of the Act, awards, and certified agreements. The inspectors are already vested with specific powers and functions for compliance with the Act, awards, certified agreements, and orders made by the Australian Industrial Relations Commission. By extending the standing to apply for penalty orders to inspectors, the regulation ensures that those responsible for enforcing workplace relations laws can also seek judicial remedies for breaches related to industrial action prior to the expiry of a certified agreement. This regulation operates nationally, given the federal nature of workplace relations legislation in Australia. It does not alter the scope of the Act but clarifies and extends the application of penalty provisions by including inspectors as eligible applicants for court orders.
Key Provisions
The Workplace Relations Amendment Regulations 2005 (No. 1) under the Workplace Relations Act 1996 introduce specific provisions concerning the enforcement of industrial action regulations. Section 170MN of the Act prohibits employees or organisations from taking industrial action to support or advance claims against an employer in respect of the employment of employees covered by a certified agreement before that agreement's nominal expiry date. This section also includes a penalty provision (section 170ND(b)), which means that contraventions of this prohibition can lead to specific enforcement and remedies as outlined in Division 10 of Part VIB of the Act.
The Act further mandates that an eligible court, which includes the Federal Court of Australia, a District, County or Local Court, or a magistrate’s court, may impose penalties on those who breach these provisions (section 170NF). Section 170NE defines eligible courts and subsection 170NF(4) specifies the persons with standing to apply for a penalty order. These persons include employees covered by the certified agreement, persons bound by the agreement, and those affected by the industrial action. Additionally, paragraph 170NF(4)(d) allows for any other person prescribed by the regulations to bring such an application, although currently, no persons have been prescribed in the regulations.
The Regulations aim to prescribe inspectors appointed under subsection 84(2) of the Act as eligible applicants for penalty orders under paragraph 170NF(4)(d) of the Act. This aligns with the inspectors' roles and functions in observing the Act, awards, and certified agreements as outlined in subsection 84(4A) and section 86 of the Act. Inspectors have general powers and functions relating to compliance with the Act, awards, certified agreements, and orders made by the Australian Industrial Relations Commission (the Commission). For instance, section 178 of the Act allows inspectors to initiate civil proceedings in a court for breaches of an award, an order of the Commission, or a certified agreement. By including inspectors as eligible applicants, the Regulations enhance the enforcement mechanisms for the provisions concerning industrial action under the Act.
The regulations commenced upon their registration on the Federal Register of Legislative Instruments, thereby providing a clear framework for inspectors to apply for penalties against those who contravene the prohibitions on industrial action before the nominal expiry date of a certified agreement. This ensures that the enforcement mechanisms are robust and that there are clear pathways for seeking redress in the event of such contraventions.