Commonwealth Numbered Acts Commonwealth Numbered Acts1 Subsection 4(1)
Insert:
"Commonwealth workplace relations legislation" means:
(a) this Act; or
(b) the Independent Contractors Act 2006 ; or
(c) regulations made under the Independent Contractors Act 2006 .
Note: The definition of Commonwealth workplace relations legislation does not cover the Registration and Accountability of Organisations Schedule or regulations made under that Schedule, because the definition of this Act excludes them both (although it includes other regulations made under the Act).
2 Subsection 4(1)
Insert:
"member" of the Office of the Workplace Ombudsman means a person covered by subsection 166P(2).
3 Subsection 4(1) (definition of workplace inspector )
Repeal the definition, substitute:
"workplace inspector" means a person who is a workplace inspector under section 167.
4 Subsection 4(1)
Insert:
"Workplace Ombudsman" means the Workplace Ombudsman holding office under Part 5A.
5 After Part 5
Insert:
Part 5A -- Workplace Ombudsman
Division 1 -- Establishment and functions
There is to be a Workplace Ombudsman.
166B Functions of the Workplace Ombudsman
The functions of the Workplace Ombudsman are as follows:
(a) to assist employees and employers to understand their rights and obligations under Commonwealth workplace relations legislation;
(b) to promote compliance with Commonwealth workplace relations legislation, including by providing assistance and advice and disseminating information;
(c) to monitor compliance with Commonwealth workplace relations legislation;
(d) to investigate suspected contraventions of Commonwealth workplace relations legislation;
(e) to inquire into any act or practice that may be contrary to Commonwealth workplace relations legislation;
(f) to refer matters to relevant authorities;
(g) to institute proceedings to enforce Commonwealth workplace relations legislation;
(h) to appoint workplace inspectors;
(i) to give, as necessary, directions relating to the exercise or performance of appointed workplace inspectors' powers or functions;
(j) to represent employees who are, or might become, a party to proceedings under this Act, in situations where the Workplace Ombudsman considers that representing the employees will promote compliance with Commonwealth workplace relations legislation;
(k) any other functions conferred on the Workplace Ombudsman by Commonwealth workplace relations legislation.
Note: Among other things, the Workplace Ombudsman has the functions of a workplace inspector because section 167 makes the Workplace Ombudsman a workplace inspector.
166C Minister may give directions to Workplace Ombudsman
(1) The Minister may, by legislative instrument, give written directions to the Workplace Ombudsman about the performance of his or her functions.
(2) Directions given by the Minister under subsection (1) must be of a general nature only, and cannot relate to a particular case.
(3) The Minister must not direct the Workplace Ombudsman in relation to the Workplace Ombudsman's performance of functions, or exercise of powers, as an Agency Head under the Public Service Act 1999 .
(4) The Workplace Ombudsman must comply with any direction given by the Minister under subsection (1).
(5) Section 42 (Disallowance of legislative instruments) of the Legislative Instruments Act 2003 applies to a direction given under subsection (1) of this section, despite section 44 of that Act.
Division 2 -- Appointment and terms and conditions
166D Appointment of Workplace Ombudsman
(1) The Workplace Ombudsman is to be appointed by the Governor‑General by written instrument.
(2) The Governor‑General must not appoint a person as the Workplace Ombudsman unless the Minister is satisfied that the person:
(a) has suitable qualifications or experience; and
(b) is of good character.
(3) The Workplace Ombudsman holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
(4) The Workplace Ombudsman holds office on a full‑time basis.
(1) The Workplace Ombudsman is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Workplace Ombudsman is to be paid the remuneration that is prescribed.
(2) The Workplace Ombudsman is to be paid the allowances that are prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act 1973 .
(1) The Workplace Ombudsman has the recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant the Workplace Ombudsman leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.
166G Other terms and conditions
The Workplace Ombudsman holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor‑General.
The Workplace Ombudsman must not engage in paid employment outside the duties of the Workplace Ombudsman's office without the Minister's approval.
The Workplace Ombudsman must give written notice to the Minister of all interests, pecuniary or otherwise, that the Workplace Ombudsman has or acquires that could conflict with the proper performance of the Workplace Ombudsman's functions.
(1) The Minister may appoint a person to act as the Workplace Ombudsman:
(a) during a vacancy in the office of Workplace Ombudsman (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the Workplace Ombudsman is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
(2) The Minister must not appoint a person to act as the Workplace Ombudsman unless the Minister is satisfied that the person:
(a) has suitable qualifications or experience; and
(b) is of good character.
(3) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment; or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
(1) The Workplace Ombudsman may resign his or her appointment by giving the Governor‑General a written resignation.
(2) The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.
166M Termination of appointment
(1) The Governor‑General may terminate the appointment of the Workplace Ombudsman for misbehaviour or physical or mental incapacity.
(2) The Governor‑General must terminate the appointment of the Workplace Ombudsman if:
(a) the Workplace Ombudsman:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(b) the Workplace Ombudsman is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c) the Workplace Ombudsman engages, except with the Minister's approval, in paid employment outside the duties of his or her office; or
(d) the Workplace Ombudsman fails, without reasonable excuse, to comply with section 166J.
Division 3 -- Staff, delegations etc.
The staff assisting the Workplace Ombudsman in the performance of the Workplace Ombudsman's functions must be persons engaged under the Public Service Act 1999 .
166P Office of the Workplace Ombudsman
(1) The Office of the Workplace Ombudsman is established by this subsection.
(2) The Office of the Workplace Ombudsman consists of:
(a) the Workplace Ombudsman; and
(b) the staff assisting the Workplace Ombudsman in the performance of the Workplace Ombudsman's functions; and
(c) the appointed workplace inspectors.
(3) For the purposes of the Public Service Act 1999 :
(a) the Workplace Ombudsman and the staff assisting the Workplace Ombudsman in the performance of the Workplace Ombudsman's functions together constitute a Statutory Agency; and
(b) the Workplace Ombudsman is the Head of that Statutory Agency.
(1) The Workplace Ombudsman may, in writing, delegate to an SES employee, or an acting SES employee, in the Office of the Workplace Ombudsman any of the Workplace Ombudsman's functions and powers under Commonwealth workplace relations legislation.
(2) In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the Workplace Ombudsman.
(3) Subsection (1) does not apply to the functions and powers of a workplace inspector that the Workplace Ombudsman has because of section 167.
Note: If the Workplace Ombudsman wants an SES employee, or an acting SES employee, in the Office of the Workplace Ombudsman to have any of the functions or powers of a workplace inspector, the Workplace Ombudsman can appoint the SES employee or acting SES employee as a workplace inspector under section 167.
Division 4 -- Reporting and disclosing information
Subdivision A -- Reporting to Minister
166R Minister may require reports
(1) The Minister may, in writing, direct the Workplace Ombudsman to give the Minister specified reports relating to the Workplace Ombudsman's functions.
Note: Section 166T restricts the disclosure of personal information in a report.
(2) The Workplace Ombudsman must comply with the direction.
(3) A direction made under subsection (1) is not a legislative instrument.
(4) If the report is made in writing, the report is not a legislative instrument.
The Workplace Ombudsman must, as soon as practicable after the end of each financial year, prepare and give to the Minister, for presentation to the Parliament, a report on the operations of the Office of the Workplace Ombudsman during that year.
Note: See also section 34C of the Acts Interpretation Act 1901 , which contains extra rules about annual reports.
166T Reports not to include information relating to an individual's affairs
(1) Information relating to the affairs of an individual must not be included in a report under section 166R or 166S if:
(a) the individual is named, or otherwise specifically identified, in the report as the individual to whom the information relates; or
(b) it is reasonably likely that people generally (other than people to whom the individual has disclosed information relating to the individual's affairs) would be able to work out the identity of the individual to whom the information relates.
(2) For the purposes of applying paragraph (1)(b) to information relating to a particular individual's affairs, the context in which the information appears, and information that is otherwise publicly available, must be taken into account (as well as any other relevant matter).
Subdivision B -- Disclosing information
166U Disclosure of information by members of the Office of the Workplace Ombudsman
Disclosure that is necessary or appropriate
(1) A member of the Office of the Workplace Ombudsman may disclose information acquired by the member in the course of exercising powers, or performing functions, as such a member (including as a delegate of the Workplace Ombudsman), if the member considers on reasonable grounds that it is necessary or appropriate to do so in the course of exercising his or her powers, or performing his or her functions, as such a member.
Disclosure to migration officer
(2) A member of the Office of the Workplace Ombudsman may disclose information to an officer of the Department administered by the Minister who administers the Migration Act 1958 if the member considers on reasonable grounds that the disclosure of the information is likely to assist the officer in the administration of that Act.
Disclosure authorised by regulations to Commonwealth officers
(3) The regulations may authorise prescribed members of the Office of the Workplace Ombudsman to disclose information of the prescribed kind, to officers of the Commonwealth of the prescribed kind, for prescribed purposes.
Disclosure to State workplace relations official
(4) A member of the Office of the Workplace Ombudsman may disclose information to an officer of a State who has powers, duties or functions that relate to the administration of a workplace relations or other system relating to terms and conditions, or incidents, of employment, if the member considers on reasonable grounds that the disclosure of the information is likely to assist the officer in the administration of that system.
Disclosure to other officials and authorities
(5) A member of the Office of the Workplace Ombudsman may disclose information to:
(a) a person employed by, or appointed to an office of, the Commonwealth, a State or a Territory; or
(b) an authority of the Commonwealth, a State or a Territory;
if the member considers on reasonable grounds that the disclosure of the information is likely to assist the person or authority in discharging a responsibility of the person or authority relating to the administration of a law of the Commonwealth, a State or a Territory.
Relationship with other laws
(6) To avoid doubt, a disclosure in accordance with this section of personal information (within the meaning of the Privacy Act 1988 ) is taken, for the purposes of that Act, to be authorised by law.
166V Directions about exercise of powers to disclose information
(1) The Workplace Ombudsman may, by legislative instrument, give written directions to the members of the Office of Workplace Ombudsman about the disclosure of information under section 166U.
(2) Directions given by the Workplace Ombudsman under subsection (1) must be of a general nature only.
(3) A member of the Office of Workplace Ombudsman must comply with any direction given by the Workplace Ombudsman under subsection (1).
6 After subsection 167(1)
Insert:
(1A) The Workplace Ombudsman is a workplace inspector by force of this subsection.
7 Subsection 167(2)
Omit "Minister", substitute "Workplace Ombudsman".
8 Subsections 167(7) and (8)
Repeal the subsections, substitute:
(7) In exercising powers or performing functions as a workplace inspector, a workplace inspector appointed under subsection (2) must comply with any directions of the Workplace Ombudsman.
(8) If a direction under subsection (7) is of general application, the direction is a legislative instrument for the purposes of the Legislative Instruments Act 2003 .
(9) If a direction under subsection (7) relates to a particular case, the direction is not a legislative instrument for the purposes of the Legislative Instruments Act 2003 .
9 Subsection 168(1)
Omit "Minister", substitute "Workplace Ombudsman".
10 Subsection 168(1)
Omit "prescribed form", substitute "form approved by the Workplace Ombudsman".
11 Paragraph 168(3)(b)
Omit "Secretary of the Department", substitute "Workplace Ombudsman".
12 Section 170
Repeal the section.
13 Subparagraph 337A(b)(v) of Schedule 1
Repeal the subparagraph, substitute:
(v) a member of the Office of the Workplace Ombudsman (as defined in the Workplace Relations Act); and
14 Before paragraph 2(2)(p) of Schedule 2
Insert:
(oa) paragraph 166B(a);
(ob) paragraph 166B(j);
15 Before paragraph 3(2)(i) of Schedule 2
Insert:
(ha) paragraph 166B(a);
16 Paragraph 4(2)(o) of Schedule 2
Repeal the paragraph, substitute:
(o) section 166H;
(oa) paragraph 166M(2)(c);
(ob) subsection 166U(4);
Division 2--Consequential amendment
Financial Management and Accountability Regulations 1997
17 Part 1 of Schedule 1 (after table item 140AA)
Insert:
|
140AAA |
Office of the Workplace Ombudsman, comprising: (a) the Workplace Ombudsman; and (b) the staff assisting the Workplace Ombudsman in the performance of the Workplace Ombudsman's functions; and (c) the workplace inspectors appointed under section 167 of the Workplace Relations Act 1996 . See Note B |
Workplace Ombudsman |
Part 2 -- Transitional and application provisions
18 Workplace inspectors
(1) This item applies to an appointment if:
(a) the appointment was made under subsection 167(2) of the Workplace Relations Act 1996 ; and
(b) the appointment was in force immediately before the commencement of this Schedule.
(2) The appointment has effect, after the commencement of this item, as if it had been made under subsection 167(2) of the Workplace Relations Act 1996 as amended by this Schedule.
19 Identity cards
(1) Subitem (2) applies to an identity card if:
(a) the identity card was issued under subsection 168(1) of the Workplace Relations Act 1996 ; and
(b) the identity card was in force immediately before the commencement of this Schedule.
(2) The identity card has effect, after the commencement of this item, as if it had been issued under subsection 168(1) of the Workplace Relations Act 1996 as amended by this Schedule.
(3) The amendment of subsection 168(3) of the Workplace Relations Act 1996 made by this Schedule applies to persons ceasing to be inspectors after the commencement of this Schedule.
20 Disclosures qualifying for whistleblowers' protection
(1) This item applies to a disclosure of information that qualified for protection under Part 4A of Chapter 11 of Schedule 1 to the Workplace Relations Act 1996 , because of subparagraph 337A(b)(v) of that Schedule as in force before the repeal and substitution of that subparagraph by this Schedule.
(2) On and after the commencement of this Schedule, the disclosure qualifies for protection under that Part, despite that repeal and substitution.
[Index]
[Table]
[Search]
[Search this Act]
[Notes]
[Noteup]
[Previous]
[Next]
[Download]
[Help]