Commonwealth Numbered Regulations - Explanatory Statements

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FAIR WORK AMENDMENT REGULATIONS 2011 (NO. 4) (SLI NO 244 OF 2011)

EXPLANATORY STATEMENT

Select Legislative Instrument 2011 No. 244

Issued by the authority of the Minister for Tertiary Education, Skills, Jobs and Workplace Relations

Subject -              Fair Work Act 2009

                             Fair Work Amendment Regulations 2011 (No. 4)

Section 796 of the Fair Work Act 2009 (the Act) provides, in part, that the Governor-General may make regulations prescribing matters required or permitted by the Act, or necessary or convenient to be prescribed for carrying out or giving effect to the Act. The Act, together with the Fair Work Regulations 2009 (the Principal Regulations), establishes a statutory framework to govern federal workplace relations.

Subsection 548(8) of the Act provides that an officer of an industrial association may represent a party in a small claims proceeding in circumstances specified in the Principal Regulations. 

The Regulations enable an official of an industrial association to represent a party in a small claims proceeding in circumstances where the party is granted leave by the Federal Magistrates Court or a State magistrates court. In accordance with subsection 548(9) of the Act, the Regulations operate in a State magistrates court only if the law of the State allows a party to be represented by an official of an industrial association in that court in circumstances where a party is granted leave by that court.

Regulation 4.01 of the Principal Regulations outlines the manner in which a person must indicate that he or she wants a small claims procedure to apply to an action that the person has commenced. The Regulations amend regulation 4.01 of the Principal Regulations to prescribe that a party to small claims proceedings in the Federal Magistrates Court may be represented by an official of an industrial association if the party is granted leave to do so by the Federal Magistrates Court.

Further, the Regulations prescribe that a party to small claims proceeding heard in a magistrates court may be represented by an official of an industrial association if the party is granted leave to do so by that court and the law of the State allows a party to be represented in that court by officials representing interests related to the matters in dispute.

The Regulations were developed in response to the recent decision of the Federal Magistrates Court in Corcoran & Ors v Bansley Pty Ltd [2011] FMCA 440 not to allow the applicants in the matter to be represented by an industrial association. This case identified that while subsection 548(8) of the Act provides that an officer of an industrial association may represent a party in a small claims proceeding in circumstances specified in the Principal Regulations, no such regulations have been made under this provision. The decision highlighted the potential for unfairness to result if parties pursue such complicated cases in this jurisdiction without representation by their industrial association. 

In accordance with the requirements of the Multilateral Inter-Governmental Agreement for a National Workplace Relations System for the Private Sector, relevant states and territories were consulted.

The Act does not impose any conditions that need to be satisfied before the power to make the proposed Regulations may be exercised.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Office of Best Practice Regulation advised that a Regulation Impact Statement was not required.

The Regulations commence the day after they are registered on the Federal Register of Legislative Instruments.

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