This advice reminds agencies of their obligations when seeking legal advice concerning the Fair Work Act 2009 (FW Act), and other workplace relations legislation such as the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (FW Transitional Act) and the preserved aspects of the Workplace Relations Act 1996 (WR Act).
Advice on workplace relations legislation
2. Given the recent commencement of the FW Act and the FW Transitional Act, we anticipate that agencies may wish to seek legal advice on aspects of these pieces of legislation. Agencies may also wish to seek advice on certain provisions of the WR Act still in operation and/or advice on other workplace relations legislation, for example, in regards to long service leave or maternity leave.
3. In accordance with paragraph 10 of the Attorney General’s Legal Services Directions, agencies are reminded of the consultation requirements, in particular those that apply prior to seeking legal advice.
4. Paragraph 10 of the Legal Services Directions requires that where an agency proposes to obtain legal advice on the interpretation of legislation administered by another agency, that agency is to provide the administering agency with:
- a reasonable opportunity to consult on the proposal to seek advice prior to the request for advice being made;
- a copy of the request for advice;
- a reasonable opportunity to consult on the matter prior to the advice being finalised, including consultation with the requesting agency’s legal services provider, as required by the administering agency; and
- a copy of the advice.
5. The aim of the Directions is to promote consistency in statutory interpretation across Australian Government agencies, and to ensure that agencies do not act inconsistently in respect of a particular piece of legislation. This is particularly important with significant new Acts such as the FW Act and the FW Transitional Act.
6. Consultation with and copying of advice to DEEWR will also better enable the Department to advise agencies generally of issues that may have implications across Australian Government agencies.
Advice on the Australian Government Employment Bargaining Framework
7. Agencies have, on occasion, provided DEEWR with copies of legal advice relating to the application and interpretation of the Australian Government Employment Bargaining Framework (AGEBF).
8. As the AGEBF is a Government policy document, agencies intending to seek legal advice on the AGEBF should consult with DEEWR in the first instance using the principles outlined above.
Provision of legal advice to DEEWR
9. Advice should be provided in the first instance to your DEEWR Client Contact within Public Sector Branch, and copied to:
Workplace Relations Legal Group
Department of Education, Employment and Workplace Relations
GPO Box 9880
Canberra ACT 2601
Further information and advice
10. Should you require further information or assistance on this matter, please contact your APSC Client Contact directly, email agebf [at] apsc.gov.au
Public Sector Branch