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2002 - 2003
THE PARLIAMENT
OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
WORKPLACE RELATIONS AMENDMENT
(PROTECTION FOR EMERGENCY MANAGEMENT VOLUNTEERS) BILL
2003
EXPLANATORY MEMORANDUM
(Circulated by
authority of the Minister for Employment and Workplace Relations,
the
Honourable Tony Abbott MP)
OUTLINE
This Bill would amend the Workplace Relations
Act 1996 (WR Act) to protect emergency management volunteers from unlawful
dismissal.
Section 170CK of the WR Act provides that an employer must
not terminate an employee’s employment for a specified reason. These
reasons are set out in subsection 170CK(2) and include:
• temporary
absence from work due to illness or injury; and
• race, colour,
sex, sexual preference, age, physical or mental disability, marital status,
family responsibilities, pregnancy, religion, political opinion, national
extraction or social origin.
The Bill proposes to include a new ground in
subsection 170CK(2) to make it unlawful to dismiss an emergency management
volunteer who is temporarily absent from the workplace on voluntary emergency
management duty. To attract this protection, the absence must be reasonable in
all the circumstances.
The proposed amendment would apply
Australia-wide, except for those employees currently excluded from access to a
termination of employment remedy (eg. short-term casuals).
The Bill does
not create a right or entitlement to pay for the time the employee is absent on
emergency management duty.
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.
Clause 2:
Commencement
This clause specifies that the provisions of the Act
commence on the day after Royal Assent.
Clause 3 –
Schedule(s)
This clause provides that an Act that is specified in a
Schedule is amended or repealed as set out in that Schedule, and any other item
in a Schedule operates according to its terms.
SCHEDULE 1 – AMENDMENTS
1.1 This Schedule proposes
amendments to the WR Act, in particular subsection 170CK(2), which make a
termination of employment on a number of grounds
unlawful.
Workplace Relations Act 1996
Item 1
– Subsection 170CB(6)
Item 2 – At the end of subsection
170CK(1)
1.2 Subsection 170CK(1) provides that, in addition to the
principal object set out in section 170CA, the object of section 170CK is to
assist in giving effect to named international instruments: the Convention
concerning Discrimination in respect of Employment and Occupation and the Family
Responsibilities Convention.
1.3 Item 2 would insert a new subsection
170CK(1)(c) into the WR Act that would provide that the object of section 170CK
is also to assist in giving effect to International Labour Organisation
Recommendation 166 concerning Termination of Employment. (Article 5 of
the Recommendation refers, inter alia, to absence from work due to civic
obligation as not constituting a valid reason for termination.)
1.4 The
amendment to subsection 170CB(6) proposed by item 1 is consequential upon the
insertion of new subsection 170CK(1)(c).
Item 3 – Paragraph
170CK(2)(h)
Item 4 – At the end of subsection
170CK(2)
1.5 Item 3 would make a minor
amendment consequential upon the insertion of new subsection 170CK(2)(i) (to be
inserted by item 4).
1.6 Item 4 would insert a new subsection
170CK(2)(i) into the WR Act.
1.7 Subsection 170CK(2) lists a number of
grounds on which it is unlawful for an employer
terminating an
employee’s employment, including:
• temporary absence from
work because of illness or injury within the meaning of the regulations;
and
• race, colour, sex, sexual preference, age, physical or mental
disability, marital status, family responsibilities, pregnancy, religion,
political opinion, national extraction or social origin.
1.8 New
subsection 170CK(2)(i) would insert an additional ground, to make it unlawful
for an employer to terminate employment where the employee is temporarily absent
from the workplace because of the ‘carrying out of a voluntary emergency
management activity’ (see item 5 below). To attract the protection, the
absence must be reasonable in all of the circumstances.
1.9 This
‘reasonableness’ requirement means that in most circumstances there
would be an expectation that the employee would seek the employer’s
consent before absenting himself or herself from the workplace. However, there
may be circumstances where prior consent would not be possible.
1.10 The
duration of the absence would also have to be reasonable in all of the
circumstances, and in all cases would need to be temporary. The size of the
employer’s business is one factor which may affect what is considered
reasonable. For example, it would arguably not be reasonable for the only
employee of a small business to be absent from work for an extended period of
time.
1.11 It is not intended that an employee would be permanently
protected from dismissal. However, protection would not be denied simply
because a recognised emergency management body (see below) requested a volunteer
to perform a role in relation to an emergency or natural disaster in
circumstances where the future duration of an emergency is not known or
predictable.
Item 5 – At the end of section
170CK
1.12 This item would insert new subsections 170CK(5), (6) and
(7). These provisions set out the scope of the protection contained in new
subsection 170CK(2)(i).
1.13 New subsection 170CK(5) defines when an
employee is taken to be carrying out a “voluntary emergency management
activity”. The subsection sets out a number of criteria that the employee
must meet before being able to get the benefit of the protection from
dismissal.
Dealing with an emergency or natural
disaster
1.14 The employee must be carrying out an activity that
involves dealing with an emergency or natural disaster. This would include, for
example, responses to bushfire, flood or act of terrorism. Immediate preparation
and post emergency activities would be covered. However, participation in more
regular activities, such as training, would not be within the scope of the
protection.
Voluntary basis
1.15 The employee must be
carrying out emergency management activities on a voluntary basis. This Bill is
therefore not intended to provide protection to those individuals who are
employed, and are paid, by recognised emergency management
bodies.
1.16 However, new subsection 170CK(6) makes it clear that
individuals who receive gratuities, honoraria or other similar payments will
still be protected.
Member or member like
association
1.17 For the
protection to apply, the employee must be a member of, or in a member-like
association with, a recognised emergency management body. The concept of
‘member-like association’ is intended to cover circumstances where,
for example, a recognised emergency management body has no formal membership
requirements or where a person’s membership may have recently lapsed, but
the person is, for all practical purposes, still considered a member of the
body.
Request to undertake
emergency management
activity
1.18 New subsection
170CK(5)(d) makes it clear a person, to be carrying out voluntary emergency
management, must be
either:
• requested by or on
behalf of the body to carry out an activity;
or
• if no such request was
made, it would have been reasonable to expect that, if the circumstances
had permitted the making of such a request, such a request would have been made.
1.19 The
provision is not intended to give protection to ‘casual volunteers’
– those individuals who seek to provide unsolicited assistance during an
emergency.
Recognised emergency management
body
1.20 Proposed subsection 170CK(7) lists the categories of
emergency management bodies that will come within the legislative protection.
The inclusion of a number of categories is to provide protection to the large
variety of bodies that participate in emergency management activities. The
categories of recognised emergency management bodies are:
• bodies
that have a role or function under a Commonwealth, State or Territory designated
disaster plan;
• a fire-fighting, civil defence or rescue body;
and
• any other body a substantial purpose of which involves
securing the safety of persons, animals, protecting property or otherwise
responding to an emergency or natural
disaster.
1.21 A regulation making power is
also included to ensure that a body that does not fall within one of these
categories but is still legitimately engaged in emergency management activity,
is able to be included in the scope of the Bill’s
protection.
1.22 Sham arrangements are expressly excluded from the
scope of the protection against dismissal ie. bodies who are established, or are
continued in existence, for the purpose, or for purposes that include the
purpose, of enabling one or more employees to obtain the legislative protection.
Item 6 - Application of amendments
1.23 Item 6 would
provide that the proposed amendments set out in the Schedule apply to absences
that occurred, either in whole or in part, before the commencement of the
provisions.