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2000
THE PARLIAMENT OF
THE COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
WORKPLACE RELATIONS AMENDMENT (UNFAIR
DISMISSALS) BILL 1998
EXPLANATORY
MEMORANDUM
(Circulated by the authority of the Minister
for Employment, Workplace Relations
and Small Business, the Honourable Peter
Reith MP)
ISBN: 0642 454582
WORKPLACE RELATIONS AMENDMENT (UNFAIR DISMISSALS) BILL
1998
The Workplace Relations Amendment (Unfair Dismissals) Bill 1998 is being
reintroduced into the House of Representatives after the Senate negatived the
Bill on 14 August 2000.
The Workplace Relations Amendment (Unfair
Dismissals) Bill 1998 will amend the Workplace Relations Act 1996
to:
• require a 6 month qualifying period of employment before new
employees (other than apprentices and trainees) can access an unfair dismissal
remedy under the Act; and
• exclude new employees of small
businesses (other than apprentices and trainees) from the unfair dismissal
remedy under the Act.
Section 170CE of the Workplace Relations Act
1996 provides that an employee whose employment has been terminated by the
employer may apply to the Australian Industrial Relations Commission for relief
on the ground that the termination was harsh, unjust or unreasonable, on the
ground of an alleged contravention of section 170CK, 170CL, 170CM or 170CN, or
on any combination of these grounds.
The amendments to be made by
Schedule 1 to this Bill will provide that an employee (other than an apprentice
or trainee), who is first engaged by the relevant employer after the
commencement of the Bill, will not be able to make an application on the ground
that the termination of his or her employment was harsh, unjust or unreasonable,
or on grounds including that ground, if either:
• he or she had not
completed six months continuous service with that employer; or
• his or her employer employed no more than 15 employees.
The exclusion will not affect:
• the rights of existing
employees;
• the rights of apprentices or trainees;
or
• the rights of small business employees and employees with less
than six months service to take action against unlawful termination of
employment.
FINANCIAL IMPACT
STATEMENT
The proposals contained in the Bill are budget neutral.
NOTES ON CLAUSES
Clause 1 – Short
title
This is a formal provision specifying the short title of the
Act.
This Act is to commence on Royal Assent.
Clause 3 –
Schedule
This clause provides for the effect of the Schedule in
amending the Act to which it relates.
Workplace Relations Act 1996
Item 1 – Subsection 170CE(5)
1. This item proposes the
repeal of existing subsection 170CE(5) and substitution of new subsections
170CE(5), 170CE(5A) and 170CE(5B).
2. Section 170CE sets out the
prerequisites for an application to be lodged with the Australian Industrial
Relations Commission in relation to a termination of employment. Subsection
170CE(1) provides that an employee whose employment is terminated by the
employer may apply to the Commission for relief on the ground that the
termination was harsh, unjust or unreasonable, on the ground of an alleged
contravention of section 170CK, 170CL, 170CM or 170CN, or on a combination of
these grounds.
New subsection 170CE(5)
3. New subsection
170CE(5) will provide that an application may not be made under subsection
170CE(1) on the ground that a termination was harsh, unjust or unreasonable (or
on grounds that include this ground) by an employee unless:
• the
employee was first employed by the employer before the commencement of this
amending Act; or
• if the employee was first employed by the
employer on or after the commencement of the amending Act, the employee, at the
relevant time:
- was an apprentice; or
- was a trainee under a
traineeship agreement registered with a State or Territory training authority;
or
- fulfilled the requirements of subsection
170CE(5A).
4. ‘Relevant time’ is defined as the time when the
employer gave the employee notice of termination or the time when the employer
terminated the employee’s employment, whichever happened first.
5. The terms ‘apprentice’, ‘trainee’,
‘traineeship agreement’ and ‘training authority’ are to
have their ordinary meanings.
6. It should be noted that apprentices and
trainees, though not affected by this Bill, may be excluded from the operation
of the unfair dismissal provisions for other reasons. For example, apprentices
may be excluded on the basis that they are engaged under a contract of
employment for a specified period of time (within the meaning of Regulation 30B
of the Workplace Relations Regulations, or other regulations in accordance with
paragraph 170CC(1)(a) of the Act). However, this will depend on the particular
contract or indentures of apprenticeship. Similarly, trainees may be excluded
by the Regulations. This Bill is not intended to affect the application of the
Regulations as presently in force, or the scope for regulations under section
170CC.
New subsection 170CE(5A)
7. This subsection will
apply for the purposes of new subsection 170CE(5), to specify the requirements
for an employee (other than an apprentice or trainee) to be allowed to make an
application under subsection 170CE(1) on the ground that a termination was
harsh, unjust or unreasonable (or on grounds that include that ground). The
requirements will be that, at the relevant time, the
employee:
• had completed at least six months of continuous service
with the employer; and
• was employed by an employer with more than
15 employees.
8. The new subsection will also enable the regulations to
prescribe matters to be disregarded in ascertaining a period of continuous
service. (Regulation 30CB of the Workplace Relations Regulations is an example
of such a provision, framed for the purposes of section 170CM, which provides
for determination of an employee’s entitlement to minimum notice on the
basis of the employee’s period of continuous service.)
9. The new
subsection will also provide clarification as to which employees are to be
counted, for the purpose of establishing whether the employer employed more than
15 employees at the relevant time. Firstly, for the removal of doubt, the
subsection will provide that the employee whose employment was terminated is to
be counted. Secondly, the new subsection will provide that any casual employee
is not to be counted, unless that employee had been engaged on a regular and
systematic basis for a sequence of periods of employment of at least 12 months
(that is, the employee had been engaged on a regular and systematic basis at
least 12 months before the time at which the employees are counted, and the
employee was still engaged on a regular and systematic basis at the time at
which the employees are counted).
New section
170CE(5B)
10. This section restates existing paragraph 170CE(5)(b),
which provides that an application alleging unlawful termination of employment
may only be made if Subdivision C of Division 3 of Part VIA of the Act
applies to the application (that is, in accordance with section 170CB and
subject to regulations under section 170CC).