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2019-2020-2021-2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
PARLIAMENTARY WORKPLACE REFORM (SET THE STANDARD MEASURES
NO. 1) BILL 2022
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister Assisting the Prime Minister and Cabinet, the Hon
Ben Morton MP)
PARLIAMENTARY WORKPLACE REFORM (SET THE STANDARD MEASURES
NO. 1) BILL 2022
OUTLINE
The Parliamentary Workplace Reform (Set the Standard Measures No. 1) Bill 2022 (the Bill)
implements recommendations 17 and 24 of Set the Standard: Report on the Independent
Review into Commonwealth Parliamentary Workplaces (the Jenkins Report). The Jenkins
Report was prepared by the Sex Discrimination Commissioner, Ms Kate Jenkins, and
provided to the Australian Government on 30 November 2021, under section 11 of the
Australian Human Rights Commission Act 1986.
The Bill will:
• amend the Members of Parliament (Staff) Act 1984 (MoP(S) Act) to provide that
reasons for termination of employment must be given in writing and to clarify that the
existing legislative requirements apply to the termination of employment of
MoP(S) Act employees (recommendation 17(a) and (b));
• amend the Work Health and Safety Act 2011 (WHS Act) to clarify the duties
parliamentarians owe under that Act (recommendation 17(c)); and
• amend the Age Discrimination Act 2004 (AD Act) and Disability Discrimination Act
1992 (DD Act) to clarify that these laws apply to staff employed or engaged under the
MoP(S) Act (recommendation 24).
Amendments to the MoP(S) Act
The Bill will amend the MoP(S) Act to provide for notification of reasons for termination of
employment and to clarify that existing legislative requirements apply to the termination of
employment of MoP(S) Act employees. This amendment responds to recommendations 17(a)
and (b) of the Jenkins Report.
Amendments to the WHS Act
The Bill will amend the WHS Act to clarify that parliamentarians are 'officers' for the
purpose of that Act. This amendment responds to recommendation 17(c) of the Jenkins
Report which was to clarify the work health and safety duties owed by parliamentarians in
relation to their responsibilities engaging and managing staff.
Anti-discrimination law amendments
The Bill will amend the AD Act and DD Act to clarify that persons employed or engaged
under the MoP(S) Act are Commonwealth employees for the purposes of the AD Act and the
DD Act. The amendments will clarify that this cohort are protected under federal law from
age or disability discrimination in their employment and engagement. This amendment
responds to recommendation 24 of the Jenkins Report and brings these Acts in line with
amendments made to the Sex Discrimination Act 1984 (SD Act) by the Sex Discrimination
and Fair Work (Respect at Work) Amendment Act 2021 in relation to MoP(S) Act staff.
Financial impact statement
The amendments in the Bill have no financial impact.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Parliamentary Workplace Reform (Set the Standard Measures No.1) Bill 2022
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Parliamentary Workplace Reform (Set the Standard Measures No. 1) Bill 2022 (the Bill)
implements recommendations 17 and 24 of Set the Standard: Report on the Independent
Review into Commonwealth Parliamentary Workplaces (the Jenkins Report). The Jenkins
Report was prepared by the Sex Discrimination Commissioner, Ms Kate Jenkins, and
provided to the Australian Government on 30 November 2021, under section 11 of the
Australian Human Rights Commission Act 1986.
The Bill:
• amends the Members of Parliament (Staff) Act 1984 (MoP(S) Act)
(recommendation 17(a) and (b)) to provide that reasons for termination of
employment must be given in writing and to clarify that the existing legislative
requirements apply to the termination of employment of MoP(S) Act employees;
• amends the Work Health and Safety Act 2011 (WHS Act) to clarify that
parliamentarians are officers under that Act (recommendation 17(c)); and
• amends the Age Discrimination Act 2004 (AD Act) and Disability Discrimination Act
1992 (DD Act) to clarify that this legislation applies to staff employed by
parliamentarians (recommendation 24).
Amendments to the MoP(S) Act
The Bill amends the MoP(S) Act to provide for notification of reasons for termination of
employment and to clarify that existing legislative requirements apply to the termination of
employment of MoP(S) Act employees. This amendment responds to recommendations 17(a)
and (b) of the Jenkins Report.
Amendments to the WHS Act
The Bill amends the WHS Act to clarify that parliamentarians are 'officers' for the purpose
of that Act. This amendment responds to recommendation 17(c) of the Jenkins Report to
clarify the work health and safety duties owed by parliamentarians in relation to their
responsibilities engaging and managing staff.
Anti-discrimination law amendments
The Bill amends the AD Act and the DD Act to clarify that these laws apply to staff and
consultants employed or engaged under the MoP(S) Act. The Bill does so by including this
cohort in the definition of 'Commonwealth employee'. This amendment responds to
recommendation 24 of the Jenkins Report and brings these Acts in line with amendments
made to the Sex Discrimination Act 1984 (SD Act) by the Sex Discrimination and Fair Work
(Respect at Work) Amendment Act 2021 in relation to MoP(S) Act staff. The amendments
will clarify that this cohort are protected under federal law from age or disability
discrimination in their employment and engagement.
Human rights implications
This Bill engages the following rights:
• Right to work and rights in work contained in articles 6(1) and 7(b) of the
International Covenant on Economic, Social and Cultural Rights (ICESCR) and
article 27 of the Convention on the Rights of Persons with Disabilities (CRPD).
• Right to equality and non-discrimination in article 26 of the International Covenant on
Civil and Political Rights (ICCPR) and articles 3, 4, 5 and 12 of the CRPD.
Right to work and rights in work
Article 6(1) and 7 of the ICESCR and article 27 of the CRPD provide the right to work and
rights in work, including the right of everyone to the opportunity to gain his or her living by
work which he or she freely chooses or accepts. It also includes the right to enjoyment of just
and favourable conditions of work which ensures safe and healthy working conditions, and
the right to protection of health and safety in working conditions. The right also encompasses
the right not to be unjustly deprived of work, and to have security against unfair dismissal.
The International Labour Organisation's (ILO) Termination of Employment Convention,
1982 (No. 158), relevantly provides that a person's employment shall not be terminated
unless there is a valid reason for such termination connected with the capacity or conduct of
the worker or based on the operational requirements of the business.
The Bill promotes the right to work by providing for notification of reasons for termination of
employment and to clarify that existing legislative requirements apply to the termination of
employment of MoP(S) Act employees, including the protections of the Fair Work Act 2009.
The Bill promotes the right to safe and healthy working conditions by clarifying that
parliamentarians are 'officers' under the WHS Act. Parliamentarians would have a clear duty
to exercise due diligence to ensure the Commonwealth complies with its duties and
obligations to MoP(S) Act employees, including to ensure the health and safety of those
employees.
A central tenet of the right to gain a living by work and the enjoyment of just and favourable
conditions of work is protection against discrimination in the workplace, including on the
grounds of age and disability. The Bill also promotes the right to just and favourable working
conditions by clarifying that the AD Act and DD Act are intended to cover persons employed
or engaged under the MoP(S) Act. The amendments would have the effect of clarifying that
this cohort are protected from discrimination on the grounds of age or disability in their
employment or engagement under federal law.
Right to equality and non-discrimination
Articles 2, 16 and 26 of the ICCPR and articles 3, 4, 5 and 12 of the CRPD protect the right
to equality and non-discrimination by providing that all individuals have the same rights and
deserve the same level of respect, regardless of their personal attributes such as race, sex,
disability, age or colour (among other attributes).
The Bill engages the right to equality and non-discrimination by clarifying that the AD Act
and DD Act are intended to cover persons employed or engaged under the MoP(S) Act. This
follows similar affirmation in the Sex Discrimination Fair Work (Respect at Work)
Amendment Act 2021 regarding the application of the SD Act. The amendments have the
effect of clarifying that this cohort are protected from discrimination on the grounds of age or
disability in their employment or engagement under federal law. This legislative affirmation
sends a clear and important signal that unlawful discrimination of any kind has no place in
Australia's national Parliament.
By clarifying the operation of the AD Act and DA Act to reduce confusion in a complex
legislative environment and ensure Commonwealth parliamentary workplaces are safe and
respectful, the Bill will promote the right to equality and non-discrimination.
Conclusion
The Bill is compatible with human rights given it promotes a number of human rights.
PARLIAMENTARY WORKPLACE REFORM (SET THE STANDARD MEASURES
No. 1) BILL 2022
NOTES ON CLAUSES
Clause 1--Short Title
1. Clause 1 is a formal provision specifying the short title of the Bill.
Clause 2--Commencement
2. This clause would provide for the commencement of each provision of the Bill, as set
out in the table. Item 1 in the table provides that the whole Bill commences on the day after
the Bill receives Royal Assent.
3. Subclause 2(2) provides that any information in column 3 of the table is not part of
this Act. Information may be inserted in this column, or information in it may be edited, in
any published version of this Act.
Clause 3--Schedules
4. Clause 3 provides that legislation that is specified in a Schedule is amended or
repealed as set out in that Schedule, and any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1--Termination of employment of parliamentarians' staff
Members of Parliament (Staff) Act 1984
Item 1 At the end of Part I
1. Item 1 would add a new section 3A at the end of Part 1 of the Members of Parliament
(Staff) Act 1984 (MoP(S) Act) that would clarify, for the avoidance of doubt, that the Fair
Work Act 2009 (FW Act) and the Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009 apply to individuals engaged under Part III or IV of the MoP(S) Act.
This amendment is intended to address any confusion or misconception regarding the
applicability of the protections of the FW Act to MoP(S) Act employees, it does not alter the
interaction or relationship between the MoP(S) Act and the FW Act.
Item 2 After subsection 16(3)
2. Item 2 would insert a new subsection 16(3A) that would require a notice of
termination of employment given under subsection 16(3) of the MoP(S) Act to specify the
ground or grounds of the termination. Subsection 16(3) allows an office-holder to terminate
the employment of a person employed by the office-holder at any time, by notice in writing
given to the employee. An office-holder is defined in section 3 of the MoP(S) Act and
includes a former Prime Minister, a Minister, the Leader or Deputy Leader, in each House of
Parliament, of the Opposition or of a recognized political party, or a person in respect of
whom a determination by the Prime Minister under section 12 of the MoP(S) Act is in force.
3. Failure to notify of the reason for dismissal is a factor that the Fair Work Commission
will consider when deciding if a termination of employment is harsh, unjust or unreasonable
under section 387 of the FW Act.
4. Note 1 to subsection 16(3A) would inform the reader that the FW Act provides certain
rules and entitlements that apply to termination of employment that also apply to termination
of employment of a MoP(S) Act employee. These include Parts 3-1 (general protections) and
3-2 (unfair dismissal) of that Act as well as notice of termination provisions such as
section 117.
5. Note 2 to subsection 16(3A) would inform the reader that additional rules or
procedures are to be followed in terminating the employment of a person under
subsection 16(3) of the MoP(S) Act. Additional rules or procedures may be set out in the
agreement for the employment of the person, fair work instruments (within the meaning of
the FW Act) or determinations made under subsection 13(2) or 14(3) of the MoP(S) Act.
6. Note 3 to subsection 16(3A) would inform the reader that termination of employment
may be unlawful under anti-discrimination laws in certain circumstances.
Item 3 After subsection 23(2)
7. Item 3 would insert a new subsection 23(2A) in similar terms to the new
subsection 16(3A). It would require a notice of termination of employment given under
subsection 23(2) of the MoP(S) Act to specify the ground or grounds of the termination.
Subsection 23(2) allows a Senator or Member of the House of Representatives to terminate
the employment of a person employed by the Senator or Member at any time, by notice in
writing given to the employee.
8. Failure to notify of the reason for dismissal is a factor that the Fair Work Commission
will consider when deciding if a termination of employment is harsh, unjust or unreasonable
under section 387 of the FW Act.
9. Note 1 to subsection 23(2A) would inform the reader that the FW Act provides certain
rules and entitlements that apply to termination of employment that also apply to termination
of employment of a MoP(S) Act employee. These include Parts 3-1 (general protections) and
3-2 (unfair dismissal) of the FW Act as well as notice of termination provisions such as
section 117.
10. Note 2 to subsection 23(2A) would inform the reader that additional rules and
procedures are to be followed in terminating the employment of a person under
subsection 23(2) of the MoP(S) Act. Additional rules or procedures may be set out in the
agreement for the employment of the person, fair work instruments (within the meaning of
the FW Act) or determinations made under subsection 20(2) or 21(3) of the MoP(S) Act.
11. Note 3 to subsection 23(2A) would inform the reader that termination of employment
may be unlawful under anti-discrimination laws in certain circumstances.
Schedule 2--Clarifying work health and safety duties of parliamentarians
Work Health and Safety Act 2011
Item 1 Section 4
12. Item 1 would insert a new definition of parliamentarian to section 4 of the Work
Health and Safety Act 2011 (WHS Act). The definition covers all individuals that can employ
or engage MoP(S) Act employees.
Item 2 Subsection 247(2)
13. Item 2 would amend subsection 247(2) to allow for the exception provided in new
subsection 247(3), which provides that a Minister is an officer for the purposes of the WHS
Act when they are undertaking a role relating to the employment or engagement of MoP(S)
Act employees.
Item 3 At the end of section 247
14. Item 3 would insert new subsections 247(3) and 247(4).
15. New subsection 247(3) would clarify that parliamentarians can be 'officers' for the
purpose of the WHS Act and that they owe this duty to the workers who are engaged by them
to support their work as a parliamentarian. The new subsection specifies the undertaking
which parliamentarians are involved in; this is the business or undertaking of the
Commonwealth constituted by the provision by the Commonwealth of support for the
functioning of the Parliament.
16. The officer duty requires the person to exercise due diligence to ensure that the
relevant person conducting a business or undertaking (e.g. the Commonwealth) complies
with their duties under the Act, including the duty to ensure the health and safety of workers
so far as is reasonably practicable.
17. New subsection 247(4) would ensure that subsection (3) is not interpreted narrowly. It
permits others to be considered 'officers' in relation to a business or undertaking of the
Commonwealth relating to the business or undertaking of the Commonwealth constituted by
the provision by the Commonwealth of support for the functioning of the Parliament. For
example, this may include other senior MoP(S) Act employees within a parliamentarian's
office. A parliamentarian may also be an officer for other purposes unconnected to a business
or undertaking of the Commonwealth relating to the employment or engagement of
MoP(S) Act employees.
Schedule 3-- Clarifying the operation of anti-discrimination legislation for
parliamentarians' staff
Age Discrimination Act 2004
Item 1 Section 5 (at the end of the definition of administrative office)
18. Item 1 would add new paragraph (i) to the definition of 'administrative office' in
section 5 of the Age Discrimination Act 2004 (AD Act). This new paragraph clarifies that an
office of a person employed or engaged under the MoP(S) Act is not an administrative office
under the AD Act. The Note clarifies that a person who holds an office of a person employed
or engaged under the MoP(S) Act is instead captured by the definition of 'Commonwealth
employee', as outlined below.
Item 2 Section 5 (at the end of the definition of Commonwealth employee)
19. Item 2 would add new paragraph (g) to the definition of Commonwealth employee in
section 5 of the AD Act. This has the effect of clarifying that a person employed or engaged
under the MoP(S) Act is protected from discrimination on the ground of age in employment.
Employment is defined in section 5 of the AD Act to include work as a Commonwealth
employee. Section 18 of the AD Act makes it unlawful to discriminate on the ground of a
person's age in employment.
Disability Discrimination Act 1992
Item 3 Subsection 4(1) (at the end of the definition of administrative office)
20. Item 3 would add new paragraph (i) to the definition of 'administrative office' in
section 4 of the Disability Discrimination Act 2004 (DD Act). This new paragraph clarifies
that an office of a person employed or engaged under the MoP(S)Act is not an administrative
office under the DD Act. The Note clarifies that a person who holds an office of a person
employed or engaged under the MoP(S) Act is instead captured by the definition of
'Commonwealth employee', as outlined below.
Item 4 Subsection 4(1) (at the end of the definition of Commonwealth employee)
21. Item 4 would add new paragraph (h) to the definition of Commonwealth employee in
section 4 of the DD Act. This has the effect of clarifying that a person employed or engaged
under the MoP(S) Act is protected from discrimination on the ground of disability in
employment (including discrimination involving harassment). 'Employment' is defined in
section 4 of the DD Act to include work as a Commonwealth employee. Section 15 of the DD
Act makes it unlawful to discriminate on the ground of a person's disability in employment.
Section 35 of the DD Act makes it unlawful to harass a person in relation to the disability in
employment.
GLOSSARY
AD Act Age Discrimination Act 2004
DD Act Disability Discrimination Act 1992
FW Act Fair Work Act 2009
Jenkins Report Set the Standard: Report on the Independent Review into
Commonwealth Parliamentary Workplaces
MoP(S) Act Members of Parliament (Staff) Act 1984
MoP(S) Act employee An employee under Parts III or IV of the MoP(S) Act
SD Act Sex Discrimination Act 1984
WHS Act Work Health and Safety Act 2011