INDUSTRIAL RELATIONS REGULATIONS (AMENDMENT) 1994 NO. 79 INDUSTRIAL RELATIONS REGULATIONS (AMENDMENT) 1994 NO. 79 - TABLE OF PROVISIONS 1. Commencement 2. Amendment 3. Regulation 7 (Representation of employing authorities before the Commission or Court) 4. Regulation 14A (Certification of agreements) 5. Regulation 25 (Manner of summoning or notifying party-paragraphs 149 (1) (b) and (c) of the Act) 6. Regulation 26 (Prescribed time-paragraph 149 (1) (c) of the Act) 7. New Part 5A 8. New Part 5B 9. New Part 6A 10. Schedule 1 11. 11 Transitional provision-part-heard proceedings 12. 12 Transitional provision-certified agreements 1994 No. 79 INDUSTRIAL RELATIONS REGULATIONS (AMENDMENT) - REG 1 1. Commencement 1.1 Regulation 7 commences on the date of commencement of section 21 of the Industrial Relations Reform Act 1993. 1.2 Regulations 4, 8 and 12 commence on the date of commencement of section 31 of the Industrial Relations Reform Act 1993. 1.3 Regulations 3, 9, 10 and 11 commence on the date of commencement of Divisions 2, 3 and 4 of Part 7 of the Industrial Relations Reform Act 1993. (Note: The remainder of these Regulations commence on Gazettal: see Acts Interpretation Act 1901, s.48) 1994 No. 79 INDUSTRIAL RELATIONS REGULATIONS (AMENDMENT) - REG 2 2. Amendment 2.1 The Industrial Relations Regulations are amended as set out in these Regulations. 1994 No. 79 INDUSTRIAL RELATIONS REGULATIONS (AMENDMENT) - REG 3 3. Regulation 7 (Representation of employing authorities before the Commission or Court) 3.1 Omit "58 (4)", substitute "469 (4)". 1994 No. 79 INDUSTRIAL RELATIONS REGULATIONS (AMENDMENT) - REG 4 4. Regulation 14A (Certification of agreements) 4.1 Omit the regulation. 1994 No. 79 INDUSTRIAL RELATIONS REGULATIONS (AMENDMENT) - REG 5 5. Regulation 25 (Manner of summoning or notifying party-paragraphs 149 (1) (b) and (c) of the Act) 5.1 Paragraph 25 (a): Omit "paragraph 149 (b)", substitute "paragraph 149 (1) (b)". 5.2 Paragraph 25 (b): Omit "paragraph 149 (c)", substitute "paragraph 149 (1) (c)". 1994 No. 79 INDUSTRIAL RELATIONS REGULATIONS (AMENDMENT) - REG 6 6. Regulation 26 (Prescribed time-paragraph 149 (1) (c) of the Act) 6.1 Omit "paragraph 149 (c)", substitute "paragraph 149 (1) (c)". 1994 No. 79 INDUSTRIAL RELATIONS REGULATIONS (AMENDMENT) - REG 7 7. New Part 5A 7.1 After Part 5, insert: "PART 5A-MINIMUM ENTITLEMENTS OF EMPLOYEES Division 1-Termination of employment Interpretation-Division 1 "30A. (1) In this Division, "authorised leave" means leave authorised: (a) by the employer; or (b) by: (i) an award or order of a court or tribunal that has power to fix wages and other terms and conditions of employment; or (ii) an agreement certified or approved by a court or tribunal referred to in subparagraph (i); or (c) by the employee's contract of employment; or (d) by a law of the Commonwealth, or of a State or Territory. "(2) An expression has the same meaning in this Division as in the Termination of Employment Convention. Employees excluded from requirements for termination of employment "30B. (1) For the purposes of section 170CC of the Act, the following employees are excluded from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Act: (a) subject to subregulation (2), employees engaged under a contract of employment for a specified period of time; (b) employees engaged under a contract of employment for a specified task; (c) employees serving a period of probation or a qualifying period of employment, if the duration of the period or the maximum duration of the period, as the case requires: (i) is determined in advance; and (ii) is reasonable, having regard to the nature and circumstances of the employment; (d) casual employees engaged for a short period within the meaning of subregulation (3). "(2) Paragraph (1) (a) does not apply to an employee engaged under a contract of a kind referred to in that paragraph if a main purpose of the employee's engagement under a contract of that kind is to avoid the employer's obligations under Subdivision B, C, D or E of Division 3 of Part VIA of the Act. "(3) For the purposes of paragraph (1) (d), a casual employee is taken to be engaged for a short period unless: (a) the employee is engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months; and (b) the employee has, or but for a decision by the employer to terminate the employee's employment, would have had, a reasonable expectation of continuing employment by the employer. "(4) For the purposes of section 170CC of the Act, casual employees (not being casual employees of a kind referred to in paragraph (1) (d)) are excluded from the operation of sections 170DB, 170DD and 170EF and Subdivisions D and E of Division 3 of Part VIA of the Act. Whether period of service continuous-matters to be disregarded "30C. (1) For the purposes of subsection 170DB (3) of the Act, in ascertaining whether an employee's period of service is continuous the following matters or events are to be disregarded: (a) any: (i) suspension, stand down or other interruption; or (ii) termination; by the employer of the employee's employment for the purpose of avoiding the employer's obligations under section 170DB of the Act; (b) any absence from work by the employee on authorised leave; (c) subject to subregulation (2), any absence from work by the employee due to: (i) the employee's illness; or (ii) an accident to the employee; (d) subject to subregulation (3), any absence from work by the employee, if there was reasonable cause for the absence; (e) subject to subregulation (4), any absence from work by the employee due to concerted or collective industrial action; (f) any other absence from work, unless notice is given under subregulation (5) in relation to that absence. "(2) Paragraph (1) (c) does not apply to an absence from work unless: (a) if the employee is required by the terms of an award or order of a court or tribunal that has power to fix wages and other terms and conditions of employment, or an agreement certified or approved by such a body, to: (i) notify the employer of an absence from work; and (ii) substantiate the reason for that absence; the employee complies with those terms; or (b) in any other case-the employee informs the employer within 24 hours after the commencement of the absence, or within such longer period as is reasonable in the circumstances, as to: (i) the employee's absence and inability to attend work; and (ii) whether the absence is due to illness, injury or accident; and (iii) the likely duration of the absence. "(3) Paragraph (1) (d) does not apply to an absence from work unless: (a) if the employee is required by the terms of an award or order of a court or tribunal that has power to fix wages and other terms and conditions of employment, or an agreement certified or approved by such a body, to: (i) notify the employer of an absence from work; and (ii) substantiate the reason for that absence; the employee complies with those terms; or (b) in any other case-the employee informs the employer within 24 hours after the commencement of the absence, or within such longer period as is reasonable in the circumstances, of: (i) the employee's absence and inability to attend work; and (ii) the likely duration of the absence. "(4) Paragraph (1) (e) does not apply to an absence from work if the Commission or a State industrial authority has determined that, for the purpose of determining the employee's entitlement to notice of termination of the employee's employment or to compensation instead of notice, the absence is to be taken as breaking the employee's continuity of service. "(5) For the purposes of paragraph (1) (f), the employer may give to the employee notice in writing in accordance with subregulation (6) that the absence from work is to be taken as breaking the employee's continuity of service with the employer. "(6) A notice under subregulation (5) (if any) must be given: (a) by delivering it to the employee personally or posting it to the employee's last known address; and (b) during, or within 14 days after the end of, the period of absence. "(7) A notice given by an employer under subregulation (5): (a) may be withdrawn by the employer; and (b) if withdrawn, is taken not to have been given. Termination on grounds of temporary absence from work "30D. (1) This regulation applies for the purpose of clarifying, consistently with paragraph 2 of Article 6 of the Termination of Employment Convention and section 170CB of the Act, circumstances which are, or are not, intended to be included within paragraph 170DF (1) (a) of the Act. "(2) For the purposes of paragraph 170DF (1) (a) of the Act, an employee's absence from work because of illness or injury is taken to be a temporary absence if, due to the illness or injury, the employee is on authorised leave. "(3) For the purposes of paragraph 170DF (1) (a) of the Act, an employee's absence from work because of illness or injury (not being an absence to which subregulation (2) applies) is taken to be a temporary absence if the employee: (a) is required by the terms of an award or order of a court or tribunal that has power to fix wages and other terms and conditions of employment, or an agreement certified or approved by such a body, to: (i) notify the employer of an absence from work; and (ii) substantiate the reason for that absence; and (b) complies with those terms. "(4) For the purposes of paragraph 170DF (1) (a) of the Act, an employee's absence from work because of illness or injury, not being an absence: (a) to which subregulation (2) applies; or (b) of a kind to which the terms mentioned in paragraph (3) (a) apply; is taken to be a temporary absence if the employee complies with subregulation (5) and, if applicable, subregulation (7) in relation to the absence. "(5) Within 24 hours after the commencement of an absence from work referred to in subregulation (4), or within such longer period as is reasonable in the circumstances, the employee must: (a) obtain a certificate, signed by a medical practitioner, that states that the employee is unable to work during the period of the absence (other than such part of the period as might reasonably have expired before the certificate could be obtained); and (b) give the certificate, together with information on the likely duration of the absence, to the employer. "(6) If a certificate given to an employer under subregulation (5) does not state that at the time and date of the certificate the employee's absence from work was expected to be temporary, the employer may request the employee to obtain and give to the employer a further certificate, signed by a medical practitioner, that states: (a) if at the time and date of the further certificate the employee is still unable to work-that the absence from work is expected to be temporary; or (b) in any other case-that at the time and date of the certificate mentioned in subregulation (5), the absence from work was expected to be temporary. "(7) An employee must comply with a request by the employer under subregulation (6) unless the request is unreasonable in the circumstances of the case. "(8) Subsection 170DF (1) of the Act and this regulation do not prevent an absence from work referred to in paragraph 170DF (1) (a) of the Act from being a reason for terminating an employee's employment if: (a) in the case of an absence referred to in subregulation (3), the employee does not comply with the terms mentioned in paragraph (3) (a); or (b) in the case of an absence referred to in subregulation (4), the employee fails to comply with subregulation (5) or (7); or (c) in the case of an absence (not being an absence to which subregulation (2) applies), the duration of the illness or injury is such that it would not be harsh, unjust or unreasonable in the circumstances to terminate the employee's employment. "(9) In this regulation, "medical practitioner" means a person registered or licensed as a medical practitioner under a State or Territory law that provides for the registration or licensing of medical practitioners. Division 2-Adoption leave Purpose of Division "30E. This Division makes provision for the purposes of section 170KC of the Act. Basic Principles "30F. (1) Under this Division, if a child under the age of 5 years is placed with an employee for adoption, the employee and the employee's spouse are entitled between them to unpaid adoption leave totalling 52 weeks to care for the child. "(2) However, an employee's entitlement to leave under this Division is reduced by the employee's other adoption leave entitlements (for example, under an award or under a State law). "(3) To obtain adoption leave under this Division, an employee must satisfy requirements relating to the following matters: (a) length of service; (b) notice periods; (c) information and documentation. "(4) Except for a period of 3 weeks at the time of the placement of the child, an employee and the employee's spouse must take adoption leave at different times. "(5) An employee may take other leave (for example, annual leave) in conjunction with adoption leave, but this will reduce the amount of adoption leave that the employee may take. "(6) Adoption leave may be varied or cancelled in certain circumstances. For example, leave may be cancelled if the employee will not become, or ceases to be, the child's primary care-giver or if there has been a mistake in calculating the amount of leave to which the employee is entitled. "(7) An employee who takes adoption leave is, in most circumstances, entitled to return to the position which the employee held before the leave was taken. "(8) Adoption leave does not break an employee's continuity of service. "(9) This Division establishes minimum entitlements to adoption leave and so is intended to supplement, and not to override, entitlements under other Commonwealth, State and Territory legislation and awards. Definitions "30G. In this Division; "adoption" means adoption under a law of the Commonwealth, a State or a Territory; "adoption agency" means: (a) an agency, body or office; or (b) a court; that is authorised by a law of the Commonwealth, a State or a Territory to perform functions in relation to adoption; "adoption leave" means short adoption leave or long adoption leave; "continuous service" means service (otherwise than as a casual or seasonal employee) under an unbroken contract of employment, and includes a period of leave, or a period of absence, authorised: (a) by the employer; or (b) by an award or order of a court or tribunal that has power to fix wages and other terms and conditions of employment, or an agreement certified by such a body; or (c) by a contract of employment; or (d) by this Division or another law of the Commonwealth or of a State or a Territory; "Division 2 adoption leave" means Division 2 short adoption leave or Division 2 long adoption leave; "Division 2 long adoption leave" has the meaning given by paragraph 30H (1) (b); "Division 2 short adoption leave" has the meaning given by paragraph 30H (1) (a); "employee" includes a part-time employee, but not a casual or seasonal employee; "law" includes an unwritten law; "long adoption leave" means Division 2 long adoption leave or any other leave (however described) that: (a) is leave to which an employee is entitled, or that has been applied for by or granted to an employee, in respect of the adoption of a child, otherwise than under this Division (for example, under another law of the Commonwealth or of a State or Territory, or under an award, order or agreement); and (b) is of a kind analogous to Division 2 long adoption leave, or would be of such a kind but for one or more of the following: (i) it is paid leave; (ii) differences in the rules governing eligibility for it; (iii) differences in the period or periods for which it can be taken; "placement" means the placement, by an adoption agency, of a child with an employee for adoption; "relevant statutory declaration", in relation to an employee, has the meaning given by paragraph 30P (1) (b); "short adoption leave" means Division 2 short adoption leave or any other leave (however described) that: (a) is leave to which an employee is entitled, or that has been applied for by or granted to an employee, in respect of the adoption of a child, otherwise than under this Division (for example, under another law of the Commonwealth or of a State or Territory, or under an award, order or agreement); and (b) is of a kind analogous to Division 2 short adoption leave, or would be of such a kind but for one or more of the following: (i) it is paid leave; (ii) differences in the rules governing eligibility for it; (iii) difference in the period or periods for which it can be taken; "spouse", in relation to an employee, includes a person of the opposite sex to the employee who lives with the employee in a marriage-like relationship, although not legally married to the employee. Entitlement to adoption leave "30H. (1) Subject to this Division, an employee is entitled, in respect of the placement of a child with the employee for adoption, to each of the following: (a) an unbroken period of up to 3 weeks of unpaid leave ("Division 2 short adoption leave") to enable the employee, or the employee and the employee's spouse, to care for the child; (b) an unbroken period of up to 52 weeks of unpaid leave ("Division 2 long adoption leave") in order to be the child's primary care-giver. "(2) An employer must grant the leave referred to in paragraphs (1) (a) and (b) if each of the following paragraphs apply: (a) the child is to be, or has been, placed with the employee for adoption; (b) as a result of the placement, the employee is to provide, or provides, care for the child; (c) the child will be, at the proposed date of the placement, or was at the date of the placement, as the case requires, under the age of 5 years; (d) the child is not a child or step-child of the employee or the employee's spouse; (e) the child will not have, at the proposed date of the placement, or had not, at the date of the placement, as the case requires, previously lived with the employee for a continuous period of 6 months or more; (f) it is reasonable to expect that the employee will complete, or the employee had completed, as the case requires, a period of at least 12 months continuous service with the employer on the day before the date of commencement of the leave; (g) the proposed leave complies with regulation 30K; (h) the employee complies with regulations 30M, 30N and 30P. Maximum period of long adoption leave "30J. The maximum period of Division 2 long adoption leave is 52 weeks less the total of: (a) if the employee has notified the employer of his or her intention to apply for a period of short adoption leave in respect of the placement-that period; (b) each period of annual leave, or long service leave, that the employee has applied to take instead of, or in conjunction with, long adoption leave in respect of the placement; (c) each period of leave specified under paragraph 30P (3) (c) in the relevant statutory declaration. Limitations on the taking of adoption leave "30K. (1) A period of Division 2 short adoption leave must begin on the day of the placement. "(2) A period of Division 2 long adoption leave must begin on the later of: (a) the day specified in the employee's application for leave as the first day of the period of leave; or (b) the date of placement of the child; and must not extend beyond the first anniversary of the date of placement of the child. "(3) A period of Division 2 long adoption leave must not overlap with a period of leave specified under paragraph 30P (3) (c) in the relevant statutory declaration. "(4) Subject to subregulations (1), (2) and (3), a period of Division 2 short adoption leave or Division 2 long adoption leave must be a continuous period equal to the shorter of: (a) the period applied for; or (b) the period of entitlement. Entitlement affected by other adoption leave available to employee "30L. (1) This regulation applies if, had this Division not been enacted: (a) an employee could have applied, in respect of the placement of a child, for short adoption leave or long adoption leave to which paragraphs (a) and (b) of the definition of "short adoption leave" or "long adoption leave", as the case may be, in regulation 30G apply; and (b) if the employee had so applied in accordance with the rules governing that adoption leave, the employee would have a legally enforceable right to a period of such leave; whether or not the employee has in fact so applied. "(2) The period of leave referred to in paragraph (1) (b) is called "the period of alternative leave". "(3) The period of Division 2 short adoption leave or Division 2 long adoption leave, as the case may be, that the employer would, but for this regulation, be required to grant to the employee in respect of the placement of the child is called the "unadjusted period of adoption leave". "(4) If the period of alternative leave is as long as, or longer than, the unadjusted period of adoption leave, the employer must not grant Division 2 short adoption leave or Division 2 long adoption leave, as the case may be, in respect of the placement. "(5) Otherwise, the employer must grant to the employee, instead of the unadjusted period of adoption leave, a period of short adoption leave, or long adoption leave, as the case may be, that: (a) equals the difference between the unadjusted period of adoption leave and the period of alternative leave; and (b) begins immediately after the period of alternative leave if the employer grants it; and (c) in other respects complies with the employee's entitlements under this Division. Note: This regulation assumes that an employee will make a single application for a composite period of adoption leave to which the employee is entitled, and that the application will be made in accordance with both this Division and the rules governing the other kind of adoption leave for which the employee is applying. Employee to give notice of adoption leave "30M. (1) An employee who: (a) is given notice of the approval of the placement of a child with the employee; and (b) intends to apply for Division 2 adoption leave in respect of the placement; must give notice to the employer in accordance with this regulation. "(2) As soon as practicable after receiving notice of the approval, the employee must give notice in writing to the employer of his or her intention to apply for Division 2 adoption leave. "(3) Within 2 months after giving notice under subregulation (2), the employee must give notice in writing to the employer of the period or periods of adoption leave that the employee proposes to take. "(4) As soon as practicable after the employee is given notice of the proposed date of placement, the employee must give notice in writing to the employer of that date. Application for adoption leave "30N. (1) An employee must apply in writing for Division 2 adoption leave. "(2) The application must specify the first and last days of the proposed period or periods of leave. "(3) The employee must submit the application to the employer: (a) in the case of Division 2 short adoption leave-at least 14 days before the proposed date of the placement of the child; or (b) in the case of Division 2 long adoption leave-at least 10 weeks before the first day of the period of leave. "(4) Paragraph (3) (a) does not apply if: (a) due to the date of placement of the child required by the adoption agency the employee cannot comply with the paragraph; and (b) the employee submits the application as soon as practicable within the period of 14 days before the proposed date of the placement. "(5) Paragraph (3) (b) does not apply if: (a) due to the date of placement of the child required by the adoption agency the employee cannot comply with the paragraph; and (b) the employee submits the application as soon as practicable within the period of 10 weeks before the first day of the period of leave. Documents to be given to employer before employee takes leave "30P. (1) Before beginning a period of Division 2 adoption leave, the employee must give to the employer: (a) a statement from the adoption agency of the proposed date of placement of the child; and (b) a statutory declaration ("the relevant statutory declaration") in accordance with subregulation (3). "(2) If the employee has applied for more than one period of Division 2 adoption leave in respect of a placement, the reference in subregulation (1) to a period is to be taken as a reference to the first of those periods. "(3) A statutory declaration under paragraph (1) (b) must: (a) state that the employee proposes to take one or both of the following (as the case requires): (i) Division 2 short adoption leave to enable the employee, or the employee and the employee's spouse, to care for the child; (ii) Division 2 long adoption leave in order to be the child's primary care-giver; (b) state that the child: (i) will be at the proposed date of the placement, or was, at the date of the placement, as the case requires, under the age of 5 years; and (ii) is not a child or step-child of the employee or the employee's spouse; and (iii) will not have, at the proposed date of the placement, or had not, at the date of the placement, as the case requires, previously lived with the employee for a continuous period of 6 months or more; (c) specify: (i) the first and last days of any period of short adoption leave for which the employee's spouse intends to apply, or has applied, in respect of the placement of the child; and (ii) the first and last days of any period of long adoption leave for which the employee's spouse intends to apply, or has applied, in respect of the placement of the child; and (iii) the first and last days of each period of annual leave, or long service leave, for which the employee's spouse intends to apply, or has applied, instead of, or in conjunction with, that adoption leave; and (d) state that the employee: (i) will be the child's primary care-giver throughout the period (if any) of Division 2 long adoption leave referred to in paragraph (3) (a); and (ii) will not engage in any conduct inconsistent with the employee's contract of employment while on adoption leave. Taking annual leave or long service leave instead of, or in conjunction with, adoption leave "30Q. If an employee applies to take annual leave, or long service leave, instead of, or in conjunction with, Division 2 short adoption leave or Division 2 long adoption leave in respect of the placement of a child, the employer must grant the annual leave or long service leave if: (a) had this Division not been enacted, the employer would have been obliged to grant it (for example, under some other law of the Commonwealth or of a State or a Territory); or (b) the total of the following does not exceed 52 weeks: (i) the period of annual leave or long service leave; (ii) each period of annual leave, or long service leave, that the employer has already granted to the employee instead of, or in conjunction with, the adoption leave; (iii) each period of adoption leave that the employer has already granted to the employee in respect of the placement; (iv) each period of leave specified under paragraph 30P (3) (c) in the relevant statutory declaration. Extension of adoption leave "30R. (1) An employee may apply in writing for an extension of Division 2 long adoption leave granted to the employee. "(2) The employer must grant the application if: (a) it is given to the employer at least 14 days before the last day of the period of leave; and (b) it specifies the first or last day of the extended period of leave, as the case requires; and (c) unless the matters referred to in subparagraphs 30P (3) (c) (i), (ii) and (iii) are still as stated in the relevant statutory declaration-the employee submits with the application for the extension a statutory declaration stating the matters referred to in those subparagraphs; and (d) the period of leave, if extended in accordance with the application, would not exceed the maximum period under regulation 30J, calculated as at the time of granting the application for the extension. "(3) The period of adoption leave may be extended again only by agreement between the employer and the employee. Shortening of adoption leave "30S. (1) An employee may apply in writing to shorten a period of Division 2 adoption leave granted to the employee. "(2) The employer may grant the application if it specifies the last day of the shortened period of leave. Effect on adoption leave of failure to complete 12 months continuous service "30T. If Division 2 adoption leave has been granted on the basis that it is reasonable to expect that the employee will complete a period of at least 12 months continuous service with the employer on a particular day, the employer may cancel the leave if the employee does not complete such a period on that day. Effect on adoption leave if child is 5 years of age or more "30U. If Division 2 adoption leave has been granted to an employee on the basis that the child will be under the age of 5 years on the day of the placement, the employer may cancel the leave if the child is not under the age of 5 years on that day. Effect on adoption leave if child has lived continuously with employee "30V. If Division 2 adoption leave has been granted to an employee on the basis that the child will not at the day of the placement have previously lived with the employee for a continuous period of 6 months or more, the employer may cancel the leave if the child had at that day previously lived with the employee for a continuous period of 6 months or more. Effect on adoption leave if child is the child of the employee or employee's spouse "30W. If Division 2 adoption leave has been granted to an employee on the basis that the child is not a child or step-child of the employee or the employee's spouse, the employer may cancel the leave if the child is a child or step-child of the employee or the employee's spouse. Effect on adoption leave if placement does not proceed "30X. (1) This regulation applies if an employer has granted Division 2 adoption leave to an employee and the placement of the child: (a) does not take place; or (b) takes place but does not continue. "(2) The employer may cancel the adoption leave at any time before it begins. "(3) If the adoption leave has begun, the employee may notify the employer in writing that the employee wishes to return to work. "(4) On receipt of a notice under subregulation (3), the employer must notify the employee in writing of the day on which the employee is to return to work, being a day within 4 weeks after the employer received the notice. "(5) If the adoption leave has begun, the employer may notify the employee in writing that the employee must return to work on a specified day that is not less than 4 weeks after the notice is given. "(6) If the employee returns to work, the employer must cancel the rest of the adoption leave. Effect on adoption leave if employee ceases to be the primary care-giver "30Y. (1) This regulation applies if: (a) during a substantial period beginning on or after the beginning of an employee's Division 2 long adoption leave, the employee is not the child's primary care-giver; and (b) having regard to the length of that period and to any other relevant circumstances, it is reasonable to expect that the employee will not again become the child's primary care-giver within a reasonable period. "(2) The employer may notify the employee in writing that the employee must return to work on a specified day that is not less than 4 weeks after the notice is given. "(3) If the employee returns to work, the employer must cancel the rest of the adoption leave. Return to work after adoption leave "30Z. (1) This regulation applies when an employee returns to work after a period of Division 2 adoption leave. "(2) The employer must employ the employee in the position that the employee held immediately before that period. "(3) If that position no longer exists but the employee is qualified for, and can perform the duties of, other positions in the employer's employment, the employer must employ the employee in whichever of those positions is nearest in status and remuneration to the position referred to in subregulation (2). Employee's duty if excessive leave granted or if periods of long adoption leave overlap "30ZA. (1) This regulation applies if the total of the following exceeds 52 weeks: (a) each period of adoption leave granted to the employee in respect of the placement of a child; (b) each period of annual leave or long service leave granted by the employer to the employee instead of, or in conjunction with, such adoption leave; (c) each period of adoption leave granted to the employee's spouse in respect of the placement of the child; (d) each period of annual leave or long service leave, granted by the employer referred to in paragraph (c), to the employee's spouse instead of, or in conjunction with, such adoption leave. "(2) This regulation also applies if a period of leave of a kind referred to in paragraph (1) (a) (other than short adoption leave) or paragraph (1) (b) overlaps with a period of leave of a kind referred to in paragraph (1) (c) (other than short adoption leave) or paragraph (1) (d). "(3) The employee must give to the employer notice in writing that: (a) if subregulation (1) applies-states that the total exceeds 52 weeks and specifies the amount of the excess; and (b) if subregulation (2) applies-specifies the period of the overlap; and (c) sets out how the employee suggests that the employer vary or cancel leave granted to the employee (except in so far as the employee has already taken the leave) so as to reduce or remove the excess or overlap; and (d) unless the variations and cancellations suggested under paragraph (c) will remove the excess or overlap-sets out the suggestions that the employee's spouse has made or proposes to make under this paragraph. "(4) The variations and cancellations suggested under this regulation must be such that, if they are all made, the excess or overlap will be removed. "(5) An employer who receives a notice under subregulation (3) may vary or cancel periods of leave as suggested in the notice, or as agreed with employee or the employee's spouse, as the case may be. Employer to warn replacement employee that employment is only temporary "30ZB. An employer must not employ a person: (a) to replace an employee while the employee is on adoption leave; or (b) to replace an employee who, while another employee is on adoption leave, is to perform the duties of the position held by the other employee; unless the employer has informed the person: (c) that the person's employment is only temporary; and (d) about the rights of the employee who is on adoption leave. Adoption leave and continuity of service "30ZC. A period of adoption leave does not break an employee's continuity of service, but does not otherwise count as service except: (a) for the purpose of determining the employee's entitlement to a later period of: (i) adoption leave; or (ii) other parental leave within the meaning of clause 2 of Schedule 14 to the Act; or (b) as expressly provided in a law of the Commonwealth or of a State or Territory, or in an award, order, agreement or instrument. Effect of Division on other laws "30ZD. To avoid doubt, this Division has effect despite: (a) a law of a State or Territory; or (b) an award, order, agreement or instrument; but is not intended to exclude or limit the operation of such a law, or of an award, order, agreement or instrument, in so far as that law, award, order, agreement or instrument can operate concurrently with this Division.". 1994 No. 79 INDUSTRIAL RELATIONS REGULATIONS (AMENDMENT) - REG 8 8. New Part 5B 8.1 Before Part VI, insert: "PART 5B-PROMOTING BARGAINING AND FACILITATING AGREEMENTS Protected action-continuity of employment not affected "30ZE. (1) For the purposes of subsection 170PG (6) of the Act, the purposes of the assessment of eligibility for, or the calculation of, each benefit and entitlement arising from the employees' employment by the employer, including, in particular: (a) superannuation entitlements; and (b) authorised leave; and (c) seniority for the purposes of remuneration and promotion; are prescribed purposes. "(2) In paragraph (1) (b), "authorised leave" means leave authorised: (a) by the employer; or (b) by: (i) an award or order of a court or tribunal that has power to fix wages and other terms and conditions of employment; or (ii) an agreement certified or approved by a court or tribunal referred to in subparagraph (i); or (c) by the employee's contract of employment; or (d) by a law of the Commonwealth, or of a State or Territory.". 1994 No. 79 INDUSTRIAL RELATIONS REGULATIONS (AMENDMENT) - REG 9 9. New Part 6A 9.1 Insert after Part VI: "PART 6A-COMPLIANCE Recovery of small claims under award or order-maximum amount "32A. For the purposes of paragraph 179D (2) (a) of the Act, an amount of $10,000 is prescribed.". 1994 No. 79 INDUSTRIAL RELATIONS REGULATIONS (AMENDMENT) - REG 10 10. Schedule 1 10.1 Form 4: Omit "Federal Court", substitute "Industrial Relations Court". 10.2 Form 11: Omit "Federal Court", substitute "Industrial Relations Court". 1994 No. 79 INDUSTRIAL RELATIONS REGULATIONS (AMENDMENT) - REG 11 11 Transitional provision-part-heard proceedings 11.1 Regulation 7 of the Industrial Relations Regulations and Schedule 1 to those Regulations, as in force immediately before the transition, continue to have effect in relation to a part-heard proceeding to which subsection 65 (3) of the Industrial Relations Reform Act 1993 applies as if these Regulations had not been enacted. 11.2 In subregulation 11.1: "part-heard proceeding" has the meaning given to it by section 65 of the Industrial Relations Reform Act 1993; "transition" has the meaning given to it by section 63 of that Act. 1994 No. 79 INDUSTRIAL RELATIONS REGULATIONS (AMENDMENT) - REG 12 12 Transitional provision-certified agreements 12.1 Regulation 14A of the Industrial Relations Regulations, as in force immediately before the commencement day, continues to have effect in relation to an application for certification of an agreement to which subparagraph 35 (2) (c) (ii) of the Industrial Relations Reform Act 1993 applies as if these Regulations had not been enacted. 12.2 In subregulation 12.1 "commencement day" has the meaning given to it by subsection 35 (1) of the Industrial Relations Reform Act 1993. - NOTES 1994 No. 79*1* INDUSTRIAL RELATIONS REGULATIONS*2* (AMENDMENT) *1* Notified in the Commonwealth of Australia Gazette on 30 March 1994. *2* Statutory Rules 1989 No. 12 as amended by 1989 Nos. 107 and 288; 1990 Nos. 328 and 461; 1991 Nos. 9, 11, 73, 137 and 366; 1992 Nos. 81, 139, 158, 232, 274, 339, 351, 357, 435 and 436; 1993 Nos. 22, 23, 41, 61, 128 and 330.