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WORKPLACE RELATIONS AMENDMENT REGULATIONS 2002 (NO. 2) 2002 NO. 208

Statutory Rules 2002 No. 208

Issued by the authority of the Minister for Employment and Workplace Relations

Workplace Relations Act 1996

Workplace Relations Amendment Regulations 2002 (No. 2)

Section 359 of the Workplace Relations Act 1996 (the Act) provides that the Governor-General may make regulations prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Section 170CC of the Act provides that the regulations may exclude specified classes of employees including 'employees engaged on a casual basis for a short period' from the operation of specified provisions of Division 3 of Part VIA of the Act, that contains provisions relating to Termination of Employment (paragraph 170CC(1)(c)).

The purpose of these Regulations is to amend the Workplace Relations Regulations (the 'Principal Regulations') to provide a two year sunset period for the operation of the exclusion of short term casual employees from the termination of employment provisions of the Act.

Paragraph 30B(1)(d) of the Principal Regulations excludes 'a casual employee engaged by a particular employer for a short period, within the meaning of subregulation (3)' from the termination of employment provisions of the Act. Subregulation 30B(3) provides that 'a casual employee is engaged by a particular employer for a short period if the occasions on which the employee works for that employer under that engagement occur within a period of less than 12 months'.

Paragraph 30B(1)(d) and subregulation (3) of the Principal Regulations were amended, as provided above, by the Workplace Relations Amendment Regulations 2001 (No. 2), (the 'amending Regulations') following the decision of the Federal Court that previous Regulations providing for the exclusion of short term casual employees from the termination of employment provisions were not authorized by the regulation making power in the Act: Hamzy v Tricon International Restaurants trading as KFC [2001] FCA 1589.

The amending Regulations are an interim measure. It is proposed to restore the original pre-Hamzy scope of the exclusion of short term casual employees from the termination of employment provisions by moving the exclusion from the Principal Regulations into the Act. It is in this context that a sunset period for the amending Regulations has been inserted.

These Regulations amend paragraph 30B(1)(d) of the Principal Regulations to insert a two year sunset period, providing for the operation of the exclusion of short term casual employees until the end of 11 September 2004.

Details of the Regulations are set out in the attachment.

The Regulations commence on gazettal.

ATTACHMENT

WORKPLACE RELATIONS AMENDMENT REGULATIONS 2002 (No. 2)

Regulation 1: Name of Regulations

Regulation 1 sets out the name of the regulations.

Regulation 2: Commencement

Regulation 2 provides that the regulations commence on gazettal.

Regulation 3: Amendment of Workplace Relations Regulations 1996

Regulation 3 is a formal provision, which provides that the Workplace Relations Regulations 1996 (the 'Principal Regulations') are amended as set out in Schedule 1.

Schedule 1: Amendment

Item 1: Paragraph 30B(1)(d)

Paragraph 170CC(1)(c) of the Workplace Relations Act 1996 (the Act) provides that regulations may exclude from specified provisions of Division 3 of Part VIA of the Act 'employees engaged on a casual basis for a short period'.

Paragraph 30B(1)(d) of the Principal Regulations excludes a casual employee engaged by a particular employer for a short period, within the meaning of subregulation 30B(3) of the Principal Regulations, from the operation of subdivisions B, C, D, E and F of Division 3 of Part VIA of the Act (the provisions relating to Termination of Employment).

Item 1 of Schedule 1 places a two year sunset clause on this exclusion by replacing the words 9 a casual employee' with the words 'until the end of 11 September 2004, a casual employee'.