Commonwealth of Australia Explanatory Memoranda

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APEC PUBLIC HOLIDAY BILL 2007

                               2004-2005-2006-2007




       THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                                     SENATE




                     APEC PUBLIC HOLIDAY BILL 2007



                  REVISED EXPLANATORY MEMORANDUM




(Circulated by authority of the Minister for Employment and Workplace Relations, the
                              Honourable Joe Hockey MP)




   THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY
                      THE HOUSE OF REPRESENTATIVES
                        TO THE BILL AS INTRODUCED
                              APEC PUBLIC HOLIDAY BILL 2007

OUTLINE
The purpose of this Bill is to ensure that all employees in the federal workplace relations system
that are affected by the public holiday on 7 September 2007 (the APEC public holiday) are
entitled to public holiday entitlements on the APEC public holiday.
The New South Wales Government has appointed Friday, 7 September 2007 as a public holiday
for certain local government areas of metropolitan Sydney, to coincide with the Asia-Pacific
Economic Cooperation (APEC) Economic Leaders Meeting.
Some federal system employees who are affected by the APEC public holiday may not be
entitled to public holiday entitlements under their industrial instrument on this day if their
industrial instrument does not provide for it as a public holiday and does not provide for how
employees are to be paid on that day. For example, the instrument may only provide for a paid
day off or penalty rates for a holiday declared for the entire State, but not for a holiday declared
for certain local government areas.
This Bill would ensure that these federal system employees receive the same public holiday
entitlements on the APEC public holiday as they would receive for other public holidays under
their instrument.
FINANCIAL IMPACT STATEMENT
The measures in this Bill would have no significant impact on Commonwealth expenditure.




                     Senate                                    page 1                        APEC Public Holiday B
Notes on Clauses



NOTES ON CLAUSES
Clause 1 ­ Short title
1.1       Proposed clause 1 is a formal provision specifying the short title of the Bill.
Clause 2 ­ Commencement
2.1        The Bill would commence on the day it receives the Royal Assent.
Clause 3 ­ Object of Act
3.1      The object of the Bill is to deem 7 September 2007 a public holiday for the purposes of
federal industrial instruments under the Workplace Relations Act 1996 (the WR Act), but only in
respect of employment in the local government areas in which the public holiday is to be
observed.
Clause 4 ­ Definitions
4.1        Proposed clause 4 would define key terms for this Bill:
Employee would mean either:
      ·   an employee within the meaning of subsection 5(1) of the WR Act;
      ·   an employee within the meaning of subclause 2(1) of Schedule 6 to the WR Act.
Employment in relation to an industrial instrument would mean either:
      ·   employment by an employer, within the meaning given in subsection 6(1) of the WR Act,
          who is bound by an industrial instrument;
      ·   employment by an excluded employer who is bound by an industrial instrument.
Excluded employer would have the same meaning as in Schedule 6 to the WR Act.
New South Wales Gazette notice would refer to the notice published under subsection 19(3) of
the Banks and Bank Holidays Act 1912 of New South Wales in Gazette No. 36 of 2 March 2007.
This notice appoints 7 September 2007 as a day to be observed as a public holiday in the local
government areas specified in the Schedule to the notice.
Industrial instrument would mean any of the following federal industrial instruments, as defined
in the WR Act:
      ·   an award as defined in section 4 of the WR Act;
      ·   a workplace agreement as defined in section 4 of the WR Act;
      ·   a workplace determination as defined in subclause 2(1) of Schedule 6 to the WR Act;
      ·   a transitional award within the meaning of subclause 2(1) of Schedule 6 to the WR Act;
      ·   a pre-reform AWA as defined in clause 1 to Schedule 7 to the WR Act;
      ·   a pre-reform certified agreement as defined in clause 1 of Schedule 7 to the WR Act;
      ·   a section 170MX award as defined in clause 1 to Schedule 7 to the WR Act;
      ·   an old IR agreement as defined in section 1 to Schedule 7 to the WR Act;
      ·   a notional agreement preserving State awards within the meaning of clause 1 of
          Schedule 7 to the WR Act;




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Notes on Clauses



    ·   a preserved State agreement (either collective or individual) as defined in subclause 1(1)
        of Schedule 8 to the WR Act; and
    ·   an instrument prescribed by the regulations for the purposes of the definition of
        `industrial instrument'.
The APEC public holiday would mean 7 September 2007.
Clause 5 ­ APEC public holiday
5.1       Proposed subclause 5(1) would provide that any reference in an industrial instrument to
a public holiday, regardless of the specific terms or wording used to describe the public holiday,
is taken to include a reference to the APEC public holiday. Subclause 5(1) would only apply in
respect of employment in a local government area that has been specified in the Schedule to the
New South Wales Gazette notice as an area in which that holiday is to be observed.
5.2     Proposed subclause 5(2) would limit the operation of proposed clause 5 so that it would
only apply in relation to an employee whose employment is subject to an industrial instrument if
the employee is also not otherwise entitled to a holiday on the APEC public holiday under the
Industrial Relations Act 1996 of New South Wales, or an instrument made under that Act (so far
as the instrument is of a legislative character).
5.3     The intention of the proposed provision is to ensure employees affected by the APEC
public holiday who are subject to a federal industrial instrument, and who are not otherwise
entitled to public holiday entitlements under that instrument, receive any public holiday
entitlements that apply under their instrument for public holidays. That is, the APEC public
holiday is to be treated in the same way as any other public holiday under the instrument.
Clause 6 ­ Concurrent operation of New South Wales laws
6.1      Proposed clause 6 would provide, for the avoidance of doubt, that the intention of the
Parliament is that the Bill is not to apply to the exclusion of a law of New South Wales to the
extent that that law is capable of operating concurrently with this Bill.
Clause 7 ­ Regulations concerning APEC public holiday
7.1       Under these proposed provisions, the Governor-General would be able to make
regulations dealing with matters of a transitional, savings or application nature in relation to the
Bill (see proposed subclause 7(1)).
7.2    Proposed subclause 7(2) would allow for the regulations to provide that the APEC public
holiday is taken to be or is not taken to be a public holiday, for the purposes of a specified law of
the Commonwealth or an instrument made under such a law. The meaning of the term `law of
the Commonwealth' would be provided for in proposed subclause 7(5) and would include a
provision of a law of the Commonwealth. Proposed subclause 7(3) would allow regulations
made under these provisions to have retrospective effect.
7.3     It is possible that under a particular law of the Commonwealth, or under an instrument
made under such a law, anomalous circumstances could arise which have not been provided by
the provisions of the Bill, or in which the provisions of the Bill would have unintended
consequences. Proposed subclause 7(2) would allow regulations to be made to remedy any
unforeseen or unintended consequences that may arise. Such anomalous outcomes that arise
after the APEC public holiday would only be capable of being remedied through law with
retrospective effect.
7.4    Consequently, a broad regulation making power allowing retrospective legislation to be
made is desirable to ensure that federal system employees get the appropriate public holiday


                     Senate                                    page 3                        APEC Public Holiday B
Notes on Clauses



entitlements that should apply under their instrument for the APEC public holiday. The broad
regulation making power in proposed subclause 7(3) would, however, be confined by operation
of proposed subclause 7(4). Under that proposed provision, the power to make retrospective
regulations would not extend so far as to allow the Commonwealth to create, modify, or
otherwise affect a provision that makes a person liable to an offence or civil penalty.
Clause 8 ­ Regulations
8.1       Proposed clause 8 would allow the Governor-General to make regulations about matters
that are required or permitted by the Bill to be made, or which are necessary or convenient to be
prescribed for carrying out or giving effect to the Bill.




                    Senate                                  page 4                       APEC Public Holiday B