Workplace Relations Regulations (Amendment) 1997 No. 314
EXPLANATORY STATEMENT
Statutory Rules 1997 No. 314
(Issued by the authority of the Minister for Workplace Relations and Small Business)
Minister for Workplace Relations and Small Business
Workplace Relations Act 1996
Workplace Relations Regulations (Amendment)
Subsection 359(1) of the Workplace Relation Act 1996 (the WR Act) provides that the Governor-General may make regulations prescribing, inter alia, matters required or permitted by the M Act, or necessary or convenient to give effect to the WR Act.
Paragraph 359(2)(fa) of the WR Act provides that regulations may be made about the delegation, by an approving authority that is a State or Territory training authority, of any of its functions and powers under Part VIE of the WR Act.
The purpose of these regulations is to generally allow the powers and functions or approving authorities to be more widely devolved and assist in making the vocational education and training system more responsive to the needs of business and industry.
'Approving authorities' may approve traineeships and apprenticeships, determine the proportionate adjustment to pay rates having regard to the effect of training on productive time, and determine an alternative to award based criteria for progression through wage scales which may apply to trainees and apprentices under certified agreements or Australian Workplace Agreements.
Australia has had a long history of work-based vocational education and training delivered through apprenticeships and more recently through traineeships. Apprenticeships and traineeships provide quality training and are regulated through a contract of training or indenture which sets out the obligations of the employer and apprentice or trainee. The States and Territories are principally responsible for the administrative and legal regulation of apprenticeships and traineeships. The Commonwealth, as well as assisting in the establishment of a national framework for vocational education and training, plays a major role in funding vocational education and training through the Australian National Training Authority.
Part VIE of the WR Act deals with the operation of the no-disadvantage test, This Part specifies how either a certified agreement (made under Part VIB) or an Australian Workplace Agreement (made under Part VID) will pass the no-disadvantage test. An agreement will pass the no-disadvantage test if the terms and conditions of employment of employees tinder the agreement do not, on balance, result in a reduction in the overall award terms and conditions of employment of those employees. Part VIE also establishes how the no disadvantage test operates in relation to approved traineeships and approved apprenticeships (see sections 170XC and 170XD).
Section 170XA of the WR Act sets out what is required of an agreement if it is to pass the nodisadvantage test. Sections 170XC and 170XD make special provision for the application of the no-disadvantage test to the wages of employees who are undertaking an approved traineeship or approved apprenticeship respectively. 'Approving authorities' (which is a defined term in section 170X of the WR Act) play a critical role in administering the no-disadvantage test ill relation to apprentices and trainees by making determinations which the industrial parties may use to establish wages which will meet the requirements of the no-disadvantage test.
Broadly, the WR Act provides a framework for the Minister for Employment, Education, Training and Youth Affairs or the Minister for Schools, Vocational Education and Training to choose an approving authority. The " Act also provides a power to make regulations to allow State or Territory approving authorities to delegate any of their functions or powers under Part VIE of the Act (see paragraph 359(2)(fa) above).
These regulations:
* prescribe criteria for the purpose of choosing an approving authority in accordance with paragraph (c) of the definition of an approving authority in section 170X (see proposed new regulation 30ZR); and
* allow State or Territory training authorities who are approving authorities to delegate their powers under Part VIE to persons including non-Government bodies (see proposed new regulation 3ZS).
The regulations have been prepared after extensive consultation with State and Territory governments and industry and business groups. The regulations have been prepared in consultation with and approved by the Minister for Employment, Education, Training and Youth Affairs.
The regulations commence on the date of gazettal.
Details of the regulations are attached.
Authority: Workplace Relations Act 1996: section 170X, subsection 359(1) and paragraph 359(2) (fa).
ATTACHMENT
WORKPLACE RELATIONS REGULATIONS (AMENDMENT)
Regulation 1
Subregulation 1.1 is a formal provision, providing that the proposed regulations amend the Workplace Relations Regulations ("the existing regulations").
In accordance with subsection 48(1) of the Acts Interpretation Act 1901 these regulations commence on gazettal.
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Regulation 2
Subregulation 2.1 inserts a new Part 5D - Approving Authorities (No-Disadvantage Test) consisting of new regulations 30ZR and 30ZS in the existing regulations. Part 5D:
* prescribes criteria for the purposes of paragraph (c) of the definition of 'approving authority' in section 170X of the Workplace Relations Act 1996 (the WR Act) (new regulation 30ZR); and
* allows an approving authority, that is a State or Territory training authority, to delegate its powers to other persons as specified in the new regulation 30ZS.
Part VIE of the WR Act sets out the no disadvantage test provisions. This Part specifies how either a certified agreement (made under Part VIB) or an Australian Workplace Agreement (made under Part VID) will pass the no-disadvantage test. Part VIE also establishes how the no disadvantage test operates in relation to approved traineeships and approved apprenticeships (see sections 170XC (approved traineeships) and 170XD (approved apprenticeships)).
Section 170XA of the WR Act sets out what is required of an agreement if it is to pass the nodisadvantage test. Subsection 170XA(2) operates subject to sections. 170XC and XL). Section 170XC makes special provision for the application of the no-disadvantage test to the wages of employees who are undertaking an approved traineeship. Section 170XD makes special provision for the application of the no-disadvantage test to the wages of employees who are undertaking an approved apprenticeship.
Section 170X defines various terms related to the no disadvantage provisions for approved traineeships and apprenticeships. Section 170X of the WR Act, defines an "approving authority" as meaning "any person or unincorporated body that:
(a) is a State or Territory training authority that exercises approval powers in relation to traineeships or apprenticeships; or
(b) is an Industry Training Advisory Body. or
(c) meets the criteria prescribed for the purposes of this definition;
and is declared in writing to be an approving authority for the purposes of this Part by:
(d) the Minister for Employment, Education, Training and Youth Affairs, or
(e) the Minister for Schools, Vocational Education and Training,."
Regulation 30ZR prescribes the criteria for the purposes of paragraph (c) in the definition of "approving authority" in section 170X.
The regulation provides that the Minister for Employment, Education, Training and Youth Affairs or the Minister for Schools, Vocational Education and Training has to be satisfied that the proposed approving authority has: (a) skills and experience of a high order in the field of vocational education and training and (b) the capacity to act fairly in discharging the functions of an approving authority.
Subregulation 30ZR(2) provides guidance to the Minister on whether a person or unincorporated body has capacity to act fairly in discharging the functions of an approving authority as referred to in paragraph 30ZR(1)(b). Subregulation 30ZR(2) provides that the Minister must consider whether the proposed approving authority can balance the interests of trainees or apprentices and employers in the ways described in paragraphs (a) and (b) of subregulation 30ZR(2).
The reference in paragraph 30ZR(2)(a) to "approving traineeships and apprenticeships" is a reference to an "approved traineeship" and an "approved apprenticeship" tinder section 170X of the WR Act. Sections 170XC and 170XD only apply to traineeships and apprenticeships approved by an approving authority.
Subregulation 30ZR(3) provides a definition of "Minister" for the purposes of the regulation. The Minister referred to here is either (a) the Minister for Employment, Education, Training and Youth Affairs or (b) the Minister for Schools, Vocational Education and Training. This subregulation reflects paragraphs (d) and (c) of the definition of "approving authority" in section 170X which provides that either Minister may declare an approving authority for the purposes of the definition in section 170X. It is intended that the same Minister be satisfied for the purposes of subregulation 30ZR(1) and in relation to a declaration of an approving authority under section 170X of the WR Act.
The purpose of subregulation 30ZR(3) is to allow the Minister for Employment, Education, Training and Youth Affairs or the Minister for Schools, Vocational Education and Training to declare a person or unincorporated body that meets the criteria in paragraph (c) other than a State or Territory training authority (see paragraph (a) above) or an Industry Training Advisory Body (see paragraph (b) above) to be an approving authority.
The purpose of regulation 30ZR is to allow either Minister to declare various non-Government persons or bodies to be approving authorities to perform functions under sections 170XC and XD in relation to approved apprenticeships and traineeships. Without regulation 30ZR it would not be possible to declare a person who was not a State or Territory training authority (paragraph (a) of the definition of approving authority in section 170X) or an Industry Training Advisory Body (paragraph (b) of definition of approving authority in section 170X). This regulation assists in making the vocational education and training system more responsive to the needs of business and industry.
Regulation 30ZS allows an approving authority that is a State or Territory training authority to delegate its powers to other persons as specified in paragraphs (a), (b) and (c).
Section 359 of the WR Act outlines the regulation making power of the Governor-General. Paragraph 359(2)(fa) provides that Governor-General may make regulations about the delegation, by an approving authority that is a State or Territory training authority, of any, of its functions and powers under Part VIE of the WR Act which relates to the no-disadvantage test provisions. Paragraph 359(2)(fa) relates only to an approving authority which is a State or Territory training authority under paragraph (a) of the definition of approving authority in section 170X of the WR Act ("paragraph (a) approving authority").
Subregulation 30ZS(1) allows the paragraph (a) approving authority to delegate its powers. Other than its own power of delegation to:
* a State and Territory training authority of the same State or Territory, or
* a training organisation registered under the laws of the State or Territory of the approving authority; or
* a person or unincorporated body who, in the opinion of the approving authority meets the same criteria found in paragraph 30ZR(1)(a) and 30ZR(1)(b).
Regulation 30ZS does not allow the power to delegate to be delegated itself This is consistent with subsection 34AB(b) of the Act Interpretation Act 1901.
Subregulation 307SS(2) makes it clear that for the purposes of delegating to an organisation under paragraph 30ZR(1)(b) that the State or Territory laws under which the training organisation is registered must be consistent with any principles of registration as agreed from time to time between the Commonwealth, States and Territories. The purpose of paragraph 30ZR(1)(b) and subregulation 30ZS(2) is to ensure that training organisations exercising delegated power from all approving authority are doing so within a nationally recognised framework for vocational education and training.
Subregulation 30ZS(3) makes it clear that for the purposes of subparagraph 30ZR(1)(c)(ii) the approving authority in forming its opinion is to consider the same matters as under subregulation 30ZR(2).