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This is a Bill, not an Act. For current law, see the Acts databases.
2002
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Workplace
Relations Amendment (Fair Termination) Bill
2002
No. ,
2002
(Employment and Workplace
Relations)
A Bill for an Act to amend the
Workplace Relations Act 1996 and the Workplace Relations Regulations
1996, and for related purposes
Contents
Part 1—Amendments 3
Workplace Relations Act
1996 3
Workplace Relations Regulations
1996 9
Part 2—Application
provision 10
Workplace Relations Act
1996 11
A Bill for an Act to amend the Workplace Relations Act
1996 and the Workplace Relations Regulations 1996, and for related
purposes
The Parliament of Australia enacts:
This
Act may be cited as the Workplace Relations Amendment (Fair Termination) Act
2002.
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, on the day or at the time specified in
column 2 of the table.
|
Commencement information |
||
|---|---|---|
|
Column 1 |
Column 2 |
Column 3 |
|
Provision(s) |
Commencement |
Date/Details |
|
1. Sections 1 to 3 and anything in this Act not elsewhere covered by
this table |
The day on which this Act receives the Royal Assent |
|
|
2. Schedule 1 |
A single day to be fixed by Proclamation, subject to
subsection (3) |
|
|
3. Schedule 2 |
A single day to be fixed by Proclamation, subject to
subsection (3) |
|
Note: This table relates only to the provisions of this Act
as originally passed by the Parliament and assented to. It will not be expanded
to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table is for additional information that is not part
of this Act. This information may be included in any published version of this
Act.
(3) If a provision covered by item 2 or 3 of the table does not
commence within the period of 6 months beginning on the day on which this Act
receives the Royal Assent, it commences on the first day after the end of that
period.
(1) Each Act, and each set of regulations, that is specified in a Schedule
to this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
(2) The amendment of a set of regulations under subsection (1) does
not prevent the regulations, as so amended, from being amended or repealed by
the Governor-General.
(3) To avoid doubt, regulations amended under subsection (1) are
taken still to be regulations.
1 After section 170CB
Insert:
Exclusions from Subdivisions B, C, D, E and F
(1) The following kinds of employee are excluded from the operation of
Subdivisions B, C, D, E and F:
(a) an employee engaged under a contract of employment for a specified
period of time;
(b) an employee engaged under a contract of employment for a specified
task;
(c) an employee serving a period of probation, if the duration of the
period or the maximum duration of the period, as the case may be, is determined
in advance and, either:
(i) the period, or the maximum duration, is 3 months or less; or
(ii) the period, or the maximum duration:
(A) is more than 3 months; and
(B) is reasonable, having regard to the nature and circumstances of the
employment;
(d) a casual employee engaged for a short period, within the meaning of
subsection (3);
(e) a trainee whose employment under a traineeship agreement or an
approved traineeship:
(i) is for a specified period; or
(ii) is, for any other reason, limited to the duration of the
agreement;
(f) an employee:
(i) who is not employed under award conditions; and
(ii) to whom subsection (5) or (6) applies.
Note 1: The expression employee engaged under a
contract of employment for a specified period of time (used in
paragraph (a)) has been addressed in a number of cases before the
Industrial Relations Court of Australia, including, in particular, Cooper v
Darwin Rugby League Inc (1994) 57 IR 238, Andersen v Umbakumba Community
Council (1994) 126 ALR 121, D’Lima v Board of Management, Princess
Margaret Hospital for Children (1995-1996) 64 IR 19 and Fisher v Edith
Cowan University (unreported judgment of Madgwick J, 12 November 1996,
No. WI 1061 of 1996).
Note 2: An employee who is excluded from the provisions of
the Act specified in this subsection may still be eligible to apply for a remedy
in relation to the termination of employment under a State law.
Note 3: The definitions in section 170CD apply for the
purposes of this section.
(2) Subsection (1) does not apply to an employee engaged under a
contract of a kind mentioned in paragraph (1)(a) or (b) if a substantial
purpose of the engagement of the employee under a contract of that kind is, or
was at the time of the employee’s engagement, to avoid the
employer’s obligations under Subdivision B, C, D or E.
(3) For the purpose 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 12 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 subparagraph (1)(f)(i), an employee is taken
not to be employed under award conditions unless the employer is bound, in
relation to the employee’s wages and conditions of employment, by an
award, a certified agreement, an AWA or an old IR agreement.
(5) For the purposes of subparagraph (1)(f)(ii), this subsection
applies to an employee if:
(a) the employee’s remuneration immediately before the termination
of employment was not wholly or partly determined on the basis of commission or
piece rates; and
(b) the rate of remuneration applicable to the employee immediately before
the termination exceeds a rate specified, or worked out in a manner specified,
in the regulations (the specified rate).
(6) For the purposes of subparagraph (1)(f)(ii), this subsection
applies to an employee if:
(a) the employee’s remuneration immediately before the termination
of employment was wholly or partly determined on the basis of commission or
piece rates; and
(b) in accordance with the regulations, the rate of remuneration that is
taken to be applicable to the employee immediately before the termination
exceeds the specified rate.
Exclusions from sections 170CL and 170CM and Subdivisions D and
E
(7) The following kinds of employee are excluded from the operation of
sections 170CL and 170CM and Subdivisions D and E:
(a) a casual employee, except a casual employee engaged for a short period
within the meaning of subsection (3);
(b) a daily hire employee:
(i) who is performing work in the building and construction industry
(including work in, or in connection with, the erection, repair, renovation,
maintenance, ornamentation or demolition of buildings or structures);
or
(ii) who is performing work in the meat industry in, or in connection
with, the slaughter of livestock;
(c) a weekly hire employee who is performing work in, or in connection
with, the meat industry and whose termination of employment is determined solely
by seasonal factors.
Note 1: An employee who is excluded from the provisions of
the Act specified in this subsection may still be eligible to apply for a remedy
in relation to the termination of employment under a State law.
Note 2: The definitions in section 170CD apply for the
purposes of this section.
Relationship between subsections (1) and (7)
(8) If, but for this subsection, an employee would be covered by both
subsections (1) and (7), the employee is taken only to be covered by
subsection (1) (and so is subject to the broader range of exclusions
provided for by that subsection).
2 Paragraphs 170CC(1)(a), (b) and
(c)
Repeal the paragraphs.
Note: The heading to section 170CC is replaced by the
heading “Regulations may provide for additional
exclusions”.
3 Subsections 170CC(2), (3) and
(4)
Repeal the subsections.
4 After section 170CC
Insert:
(1) In this section:
invalid provisions means paragraph 30B(1)(d), and
subregulation 30B(3), of the Workplace Relations Regulations as purportedly
amended by the relevant amending regulations.
relevant amending regulations means the Workplace Relations
Regulations (Amendment), Statutory Rules 1996 No. 307.
(2) Subject to subsection (3), the rights and liabilities of all
persons are, by force of this section, declared to be, and always to have been,
the same as if:
(a) section 170CC of this Act, as in force during the period (the
validation period):
(i) starting immediately before the time when the relevant amending
regulations purported to commence; and
(ii) ending on the commencement of this section;
had authorised the making of regulations containing the invalid
provisions (in addition to what that section actually authorised to be dealt
with in regulations); and
(b) a regulation in the same terms as regulation 30B of the Workplace
Relations Regulations, as purportedly amended by the relevant amending
regulations:
(i) had been made, and had commenced, immediately after the start of the
validation period for the purposes of section 170CC as having effect as
mentioned in paragraph (a); and
(ii) had been amended by regulations in the same terms as, and commencing
at the same time as, the provisions of the Workplace Relations Regulations
(Amendment), Statutory Rules 1997 No. 101, that purported to amend
regulation 30B; and
(iii) had not subsequently been amended during the validation
period.
(3) This section does not affect rights or liabilities arising between
parties to proceedings heard and finally determined by the Commission or a court
at or before the commencement of this section, to the extent that those rights
or liabilities arose from, or were affected by, the invalidity of the invalid
provisions.
5 Subsection 170CD(1)
Insert:
daily hire employee means an employee:
(a) whose employment:
(i) is regulated by an award, a certified agreement, an AWA, a State
award, a State employment agreement or an old IR agreement; and
(ii) under the award, certified agreement, AWA, State award, State
employment agreement or old IR agreement is, or is normally, apart from the
application to the employee of this Division:
(A) terminated at the end of each day or shift; or
(B) able to be terminated by the employer giving to the employee not more
than 1 day’s notice; and
(b) who is working in an industry or occupation which, on 16 November
1994, was subject to an award, State award, State employment agreement or old IR
agreement which provided for the termination of an employee’s employment
in the circumstances referred to in sub-subparagraph (a)(ii)(A) or
(B).
6 Subsection 170CD(1)
Insert:
relevant training award, in relation to an agreement,
means:
(a) if the agreement commenced before the commencement of this
definition—the award known as the National Training Wage Interim Award
1994, as in force on 16 November 1994; or
(b) if the agreement commences on or after the commencement of this
definition—whichever of the following is in force when the agreement
commences:
(i) the award known as the National Training Wage Award 2000; or
(ii) a later award that covers substantially the same subject matter as is
covered by the award referred to in subparagraph (i).
7 Subsection 170CD(1)
Insert:
State or Territory training authority means a body authorised
by a law or an award of a State or Territory for the purpose of overseeing
arrangements for the training of employees.
8 Subsection 170CD(1)
Insert:
trainee means an employee (other than an apprentice) who is
bound by a traineeship agreement.
9 Subsection 170CD(1)
Insert:
traineeship agreement means an agreement between an employer
and an employee:
(a) that is consistent with the relevant training award; and
(b) that is registered:
(i) with the relevant State or Territory training authority; or
(ii) under a law of a State or Territory relating to the training of
employees.
10 Subsection 170CD(2)
Omit “Subdivision C, D or E of this Division”, substitute
“this Subdivision or Subdivision C, D or E”.
Workplace Relations
Regulations 1996
11 Subregulation 30A(1) (definition of daily
hire employee)
Repeal the definition.
12 Subregulation 30A(1) (definition of
NETTFORCE)
Repeal the definition.
13 Subregulation 30A(1) (definition of State
or Territory training authority)
Repeal the definition.
14 Subregulation 30A(1) (definition of
trainee)
Repeal the definition.
15 Subregulation 30A(1) (definition of
traineeship agreement)
Repeal the definition.
16 Regulation 30B
Repeal the regulation.
17 Regulation 30BA
Repeal the regulation.
18 Regulation 30BB
Omit “paragraphs 170CC(3)(b) and (4)(b)”, substitute
“paragraphs 170CBA(5)(b) and (6)(b)”.
19 Regulation 30BC
Omit “paragraph 170CC(4)(b)”, substitute “paragraph
170CBA(6)(b)”.
20 Application of items 1 to 19
(other than item 4)
The amendments made by items 1 to 19, other than item 4, only
apply in relation to terminations of employment that occur after the
commencement of those items (whether the employment commenced before or after
that commencement).
1 After section 170CE
Insert:
Applications in respect of which a fee is payable
(1) A fee is payable for the lodging of an application under subsection
170CE(1), (2), (3) or (4).
Note: This has effect subject to subsection (7) (which
deals with hardship).
Amount of fee if application is lodged in first financial
year
(2) If the application is lodged at a time that is:
(a) after the commencement of this section; and
(b) in the first financial year that ends after that
commencement;
the amount of the fee is $50.
Amount of fee if application is lodged in later financial
year
(3) If the application is lodged in a later financial year (the year
of lodgment), the amount of the fee is to be worked out by:
(a) taking the amount of the fee for an application lodged in the previous
financial year; and
(b) multiplying that amount by the indexation factor for the year of
lodgment (see subsection (4)); and
(c) rounding the result to the nearest multiple of 10 cents (rounding up
if the result is exactly half-way in between).
(4) For the purposes of subsection (3), the indexation factor
for the year of lodgment is worked out using the following formula (then
rounded under subsection (5)):
where:
index number, for a quarter, means the All Groups Consumer
Price Index Number (being the weighted average of the 8 capital cities)
published by the Australian Statistician for that quarter.
most recent March year means the period of 12 months ending
on 31 March in the financial year that occurred immediately before the year
of lodgment.
previous March year means the period of 12 months immediately
preceding the most recent March year.
quarter means a period of 3 months ending on 31 March,
30 June, 30 September or 31 December.
(5) The result under subsection (4) must be rounded up or down to 3
decimal places (rounding up if the result is exactly half-way in
between).
(6) Calculations under subsection (4):
(a) are to be made using only the index numbers published in terms of the
most recently published reference base for the Consumer Price Index;
and
(b) are to be made disregarding index numbers that are published in
substitution for previously published index numbers (unless the substituted
numbers are published to take account of changes in the reference
base).
Fee not payable in case of hardship
(7) If a Registrar is satisfied that the person lodging the application
will suffer serious hardship if the person is required to pay the fee, no fee is
payable for lodging the application.
Refund of fee if application discontinued in certain
circumstances
(8) If:
(a) the fee has been paid; and
(b) the application is subsequently discontinued as mentioned in
subsection 170CE(9); and
(c) either:
(i) at the time the application is discontinued, the application has not
yet been listed for attention by the Commission; or
(ii) if the application has, at or before that time, been listed for
attention by the Commission on a specified date or dates—the
discontinuance occurs at least 2 days before that date or the earlier of those
dates;
an amount equal to the fee is to be repaid by the Commonwealth to
the person who paid it.