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Reform of Employment Services (Consequential Provisions) Bill 1996 [1998]

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1996-97

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

THE SENATE

 

 

 

 

 

 

 

 

 

 

 

 

REFORM OF EMPLOYMENT SERVICES (CONSEQUENTIAL PROVISIONS) BILL 1996

 

 

 

REPLACEMENT EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Employment, Education, Training and Youth Affairs, Senator the Hon Amanda Vanstone)

 

 

THIS MEMORANDUM REPLACES THE EXPLANATORY  MEMORANDUM PRESENTED TO THE SENATE ON 12 DECEMBER 1996

 

80786 Cat. No. 96 7240 0 ISBN 0644 498234



REFORM OF EMPLOYMENT SERVICES (CONSEQUENTIAL PROVISIONS) BILL 1996

 

OUTLINE

 

This Bill would repeal the Employment Services Act 1994 .

 

The Bill would provide for transitional arrangements in relation to the cessation of the present case management system. 

 

The Bill would make consequential amendments of the following Acts:

 

            .            Administrative Decisions (Judicial Review) Act 1977 ;

            .           Child Care Rebate Act 1993 ;

            .           Disability Discrimination Act 1992 ;

            .            Freedom of Information Act 1982 ;

.           Ombudsman Act 1976 ;

.            Privacy Act 1988 ;

.           Sex Discrimination Act 1992 ;

            .           Social Security Act 1991 ;

            .           Student and Youth Assistance Act 1973 ; and

            .           Workplace Relations Act 1996 .

           

 

           

 

PURPOSE OF THE BILL

 

This Bill would repeal the Employment Services Act 1994 .  That Act established the present case management system of unemployed persons and created the Employment Services Regulatory Authority.  It also formally established the Commonwealth Employment Service (CES) and Employment Assistance Australia (the Government provider of case management services).  The case management system would be replaced by altered arrangements for the delivery of employment services proposed under the Reform of Employment Services Bill 1996. 

 

The Government’s provider of employment services would be the Public Employment Placement Enterprise which will be a company under the Corporations Law .

 

The purpose of the amendments of the Freedom of Information Act 1982 and the Privacy Act 1988 is to extend the operation of those Acts to the new arrangements for the provision of employment services in the same way that they presently apply to case management services provided by case managers. 

 

Amendments of the Freedom of Information Act 1982 provide for members of the public to have rights of access to documents relating to the provision of employment services by entities engaged by the Commonwealth in the same way in which they presently have under the case management system.

 

The Bill would also provide for the Ombudsman to investigate complaints about the provision of employment services.  The Ombudsman would be able to refer those complaints to the Employment Secretary where it is considered the complaint could be more appropriately dealt with by my Department. 

 

The Ombudsman would be able to provide information on matters relevant to the provision of employment services to the Employment Secretary without the need to make a formal report to the responsible Minister in all cases.

 

FINANCIAL IMPACT

 

The measures in this Bill have no financial impact on the Commonwealth.

 

 



NOTES ON CLAUSES

 

 

Clause 1 - Short Title

 

This clause would provide that the short title would be the Reform of Employment Services (Consequential Provisions) Act 1996 .

 

Clause 2 - Commencement

 

This clause would generally provide that the Act would commence on the day it receives the Royal Assent however Schedules 1 and 2 would commence on the same day as the Reform of Employment Services Act 1996 .

 

Clause 3 - Schedule

 

This clause would provide that each Act which is specified in a Schedule to this Bill would be amended or repealed in accordance with the applicable item in the Schedule concerned, and any other item in a Schedule to this Bill has effect according to its terms.

 

 



 

SCHEDULE 1 - MATTERS RELATING TO ENACTMENT OF THE REFORM OF EMPLOYMENT SERVICES ACT 1996

 

 

PART 1 - REPEAL

 

Employment Services Act 1994

 

The Employment Services Act 1994 established the case management system and established the Employment Services Regulatory Authority (ESRA) as an independent statutory authority responsible for regulating the case management system.  It also formally established the Commonwealth Employment Service (CES) and Employment Assistance Australia (the Government provider of case management services).

 

Item 1 - The whole of the Act

 

Item 1 repeals the Employment Services Act 1994 .

 

 

PART 2 - TRANSITIONAL

 

 

Item 2 - Interpretation

 

Item 2 defines certain terms to be used in the Schedule.

 

Item 3 - ESRA’s assets and liabilities

 

Item 3 would provide for the vesting of the assets and liabilities of the Employment Services Regulatory Authority (ESRA) in the Commonwealth when ESRA is abolished upon the commencement of this Schedule.

 

Item 4 - ESRA’s contracts

 

Item 4 would provide for references to the Commonwealth to be substituted for references to ESRA in contracts to which ESRA was a party before the commencement of this Schedule.

 

Item 5 - Regulations

 

Item 5 would provide that the Governor-General may make regulations in relation to transitional matters arising out of the repeal of the Employment Services Act 1994 and the enactment of the Reform of Employment Services Act 1996 .  The regulations may include transitional arrangements in relation to participants, agreements and referrals made under the Employment Services Act 1994 .



 

PART 3 - CONSEQUENTIAL AMENDMENTS OF OTHER ACTS

 

Item 6 - Administrative Decisions (Judicial Review) Act 1977

 

The Administrative Decisions (Judicial Review) Act 1977 relates to the review on questions of law of certain Administrative Decisions.  Paragraph (o) of Schedule 2 to that Act excludes from such review decisions taken by the National Director of the CES to refer or not to refer persons to particular employment.  The provision would no longer be required as the CES is proposed to be abolished.

 

 

Items 7 to 9 - Child Care Rebate Act 1993

 

The Child Care Rebate Act 1993 provides for the payment of rebates for a proportion of certain child care expenses incurred by families.  The reference to the Commonwealth Employment Service (CES) in section 29 is to be replaced by a reference to the Employment Secretary.   Subsections 29(2) and 29(3) and a note, which refer to registration with the CES in an allowance category as being unemployed, are to be removed.

 

 

Item 10 - Disability Discrimination Act 1992

 

The Disability Discrimination Act 1992 relates to discrimination on the ground of disability. The reference to the Commonwealth Employment Service in section 4 (definition of employment agency) is to be omitted. 

 

 

Item 11 - Sex Discrimination Act 1992

 

The Sex Discrimination Act 1992 relates to discrimination on the ground of sex, marital status, pregnancy, potential pregnancy or family responsibilities or involving sexual harassment.  The reference to the Commonwealth Employment Service in section 4 (definition of employment agency) is to be omitted.

 

 

Items 12 to 41 - Social Security Act 1991

 

The Social Security Act 1991 provides for the payment of certain pensions, benefits and allowances, and for related purposes.  The technical amendments provided for by these items are consequential upon the repeal of the Employment Services Act 1994 and the introduction of the new employment services delivery arrangements.  Certain references to that Act would be replaced by references to the Reform of Employment Services Act 1996 .  References to the “CES” would be replaced by references to the “Employment Secretary” the (Social Security) “Secretary” and “the Agency” as appropriate.

 

 



 

Items 42 to 48 - Student and Youth Assistance Act 1973

 

The Student and Youth Assistance Act 1973 provides for certain benefits for students and young people and for other purposes.  The technical amendments provided for by these items are consequential upon the repeal of the Employment Services Act 1994 and the introduction of the new employment services delivery arrangements.  Certain references to that Act would be replaced by references to the Reform of Employment Services Act 1996 .  References to the “CES” would be replaced by references to the “Employment Secretary” the (Social Security) “Secretary” and “the Agency” as appropriate.

 

 

 

Items 49 & 50 - Workplace Relations Act 1996

 

The Workplace Relations Act 1996 provides the framework for the Australian industrial relations system.

 

Item 49 - Subsection 170CL(2)

 

Item 49 would amend subsection 170CL(2) (which deals with requirements of employers to notify of the retrenchment of 15 or more employees) by omitting “Commonwealth Employment Service” and substituting “Employment Secretary” to reflect the abolition of the Commonwealth Employment Service.

 

Item 50 - At the end of section 170CL

 

Item 50 would insert the definition of “Employment Secretary” for the purposes of the Workplace Reform Act 1996 .

 



SCHEDULE 2 - OTHER MATTERS RELATING TO ENACTMENT OF THE REFORM OF EMPLOYMENT SERVICES ACT 1996

 

 

PART 1 - AMENDMENTS

 

Freedom of Information Act 1982

 

The Freedom of Information Act 1982 gives members of the public rights of access to official documents of the Government of the Commonwealth and of its agencies.

 

The Freedom of Information Act 1982 currently refers to case managers and other terms in line with the Employment Services Act 1994 .  The following amendments will reflect the new arrangements for the delivery of employment services through the introduction of the Reform of Employment Services Act 1996 and the repeal of the Employment Services Act 1994 .

 

Item 1 - Subsection 4(1) (definition of agency )

 

Item 1 would omit “case manager” from the definition of “agency” and substitute “employment services provider”.

 

Item 2 - Subsection 4(1) (definition of eligible case manager )

 

Item 2 would repeal the definition of “eligible case manager”.

 

Item 3 - Subsection 4(1)

 

Item 3 would insert a definition of “eligible employment services provider” for the purposes of the Freedom of Information Act 1982 .

 

Item 4 - Subsection 4(1) (paragraph (c) of the definition of principal officer )

 

Item 4 would repeal paragraph (c) of the definition of “principal officer” and insert a new paragraph to reflect the changes due to the reforms.

 

Item 5 - Subsection 4(1) (paragraph (e) of the definition of responsible Minister )

 

Item 5 would repeal paragraph (e) of the definition of “responsible Minister” and insert a new paragraph to reflect the changes due to the reforms.

 

Item 6 - Section 6B

 

Item 6 would repeal Section 6B (Eligible Case Managers) and insert a new section 6B (Eligible Employment Services Providers) relating to requests for access to documents of an eligible employment services provider.

 



 

 

Ombudsman Act 1976

 

The Ombudsman Act 1976 provides for the appointment of a Commonwealth Ombudsman and a Defence Force Ombudsman and defines their respective functions and powers.

 

The Ombudsman Act 1976 currently refers to case managers and other terms in line with the Employment Services Act 1994 .  The following amendments will reflect the new arrangements for the delivery of employment services through the introduction of the Reform of Employment Services Act 1996 and the repeal of the Employment Services Act 1994 .

 

 

Item 7 - Subsection 3(1) (definition of case manager )

 

Item 7 would repeal the definition of “case manager” in subsection 3(1).

 

Item 8 - Subsection 3(1) (definition of eligible case manager )

 

Item 8 would repeal the definition of “eligible case manager” in subsection 3(1).

 

Item 9 - Subsection 3(1)

 

Item 9 would insert a definition of “eligible employment services provider” for the purposes of the Ombudsman Act 1976 .

 

Item 10 - Subsection 3(1)

 

Item 10 would insert a definition of “Employment Secretary” for the purposes of the Ombudsman Act 1976 .

 

Item 11 - Subsection 3(1)

 

Item 11 would insert a definition of “employment services provider” for the purposes of the Ombudsman Act 1976 .

 

Item 12 - Subsection 3(1) (definition of ESRA )

 

Item 12 would repeal the definition of “ESRA” (the Employment Services Regulatory Authority).

 

Item 13 - Subsection 3(1) (paragraph (b) of the definition of officer )

 

Item 13 would omit “case manager” from paragraph (b) of the definition of “officer” and substitute “employment services provider”.

 



Item 14 - Subsection 3(1) (paragraph (c) of the definition of officer )

 

Item 14 would repeal paragraph (c) of the definition of “officer” and substitute a new paragraph.

 

Item 15 - Subsection 3(1) (paragraph (e) of the definition of prescribed authority )

 

Item 15 would omit “case manager” from paragraph (e) of the definition of “prescribed authority” and substitute “employment services provider”.

 

Item 16 - Subsection 3(1) (paragraph (c) of the definition of principal officer )

 

Item 16 would omit “case manager” from paragraph (c) of the definition of “principal officer” and substitute “employment services provider”.

 

Item 17 - Subsection 3(1) (paragraph (d) of the definition of principal officer )

 

Item 17 would repeal paragraph (d) of the definition of “principal officer” and substitute a new paragraph to reflect the changes brought about by the reforms.

 

Item 18 - Subsection 3(1) (paragraph (da) of the definition of responsible Minister )

 

Item 18 would omit “ Employment Services Act 1994 ” and substitute “ Reform of Employment Services Act 1996 ”.

 

Item 19 - Paragraph 5(2)(h)

 

Item 19 would repeal the paragraph and substitute a new paragraph concerning actions by an employment services provider that the Ombudsman is not authorised to investigate.

 

Item 20 - Subsections 6(4G) and (4H)

 

Item 20 would repeal the subsections and insert new subsections relating to certain complaints to the Ombudsman.

 

Item 21- Subsection 35A(3A), (3B), (3D) and (3E)

 

Item 21 would repeal the subsections and insert new subsections concerning the disclosure of information related to employment service providers.

 



 

Privacy Act 1988

 

The Privacy Act 1988 makes provisions to protect the privacy of individuals, and for related purposes.

 

The Privacy Act 1988 currently refers to case managers and other terms in line with the Employment Services Act 1994 . The following amendments will reflect the new arrangements for the delivery of employment services through the introduction of the Reform of Employment Services Act 1996 and the repeal of the Employment Services Act 1994 .

 

 

Item 22 - Subsection 6(1) (paragraph (i) of the definition of agency )

 

Item 22 would repeal paragraph (i) of the definition of “agency” and substitute a new paragraph relating to an eligible employment services provider.

 

Item 23 - Subsection 6(1) (definition of eligible case manager )

 

Item 23 would repeal the definition of “eligible case manager”.

 

Item 24 - Subsection 6(1)

 

Item 24 would insert a new definition for an “eligible employment services provider”.

 

Item 25 - Paragraph 7(1)(a)

 

Item 25 would omit “case manager” from paragraph 7(1)(a) and substitute “employment services provider”.

 

Item 26 - Paragraph 7(1)(cb)

 

Item 26 would repeal paragraph 7(1)(cb) and insert a new paragraph.

 

Item 27 - Paragraphs 7(1)(d) and (e)

 

Item 27 would omit “case manager” from paragraphs 7(1)(d) and (e) and substitute “employment services provider”.

 

Item 28 - Paragraphs 7(1)(ea) and (eb)

 

Item 28 would repeal paragraphs 7(1)(ea) and (eb) and substitute new paragraphs.

 

Item 29 - Section 37 (items 6 and 7 of the table)

 

Item 29 would repeal items 6 and 7 of the table in Section 37 and substitute new items into the table.

 

 

Item 30 - Subsections 54(2) and 57(2)

 

Item 30 would omit “case manager” from subsections 54(2) and 57(2) and substitute “employment services provider”. The effect of this amendment would be, in relation to Section 54, that Division 3 of Part 5 of the Act, relating to review and enforcement of determinations by the Privacy Commissioner, will apply to employment services providers who are not Commonwealth agencies and, in respect of Section 57, that Division 4 of Part 5 of the Act, relating to review and enforcement of determinations by the Privacy Commissioner, will apply to employment services providers who are Commonwealth agencies.

 

 

 

PART 2 -  TRANSITIONAL

 

Item 31 - Regulations

 

Item 31 would provide that the Governor-General may make regulations in relation to transitional matters arising from the amendments made by Part 1 of this Schedule.  Such regulations could provide for matters which arose under the present case management system to be effectively dealt with after that system ceases to exist.