Commonwealth Repealed Acts

This legislation has been repealed.

WORKPLACE RELATIONS ACT 1996 - SECT 638

Exclusions from Subdivisions B, D and E and sections 660 and 661

             (1)  The following kinds of employee are excluded from the operation of Subdivisions B, D and E and sections 660 and 661:

                     (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 (4);

                     (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‑derived conditions (see subsection 642(6)); and

                             (ii)  to whom subsection (6) or (7) applies;

                     (g)  an employee engaged on a seasonal basis, within the meaning of subsection (8).

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 provision of a State law that is not excluded under section 16.

Note 3:       The definitions in section 642 apply for the purposes of this section.

             (2)  Despite the exclusion of an employee from the operation of Subdivisions B and E because of subsection (1):

                     (a)  the employee may make an application under section 643 for relief in respect of the termination of his or her employment on the ground of an alleged contravention of section 659; and

                     (b)  if the employee does so, those Subdivisions have effect, in so far as they relate to that application, as if the employee had not been excluded from their operation.

             (3)  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 or D or section 660 or 661.

             (4)  For the purpose of paragraph (1)(d), a casual employee is taken to be engaged for a short period unless:

                     (a)  subject to subsection (5)--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.

             (5)  If:

                     (a)  a casual employee was engaged by a particular employer on a regular and systematic basis for a sequence of periods during a period (the first period of employment ) of less than 12 months; and

                     (b)  at the end of the first period of employment, the casual employee ceased, on the employer's initiative, to be so engaged by the employer; and

                     (c)  the employer subsequently again engages the employee on a regular and systematic basis for a further sequence of periods during a period (the second period of employment ) that starts not more than 3 months after the end of the first period of employment; and

                     (d)  the total length of the first period of employment and the second period of employment is at least 12 months;

paragraph (4)(a) is taken to be satisfied in relation to the employment of the employee.

             (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 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 ).

             (7)  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.

             (8)  For the purposes of paragraph (1)(g), an employee is engaged on a seasonal basis if the employee is engaged to perform work for the duration of a specified season.

             (9)  For the purposes of subsection (8), a season is a period that:

                     (a)  is determined at the commencement of the employee's engagement (the commencement time ); and

                     (b)  begins at the commencement time; and

                     (c)  ends at a time in the future that:

                              (i)  is uncertain at the commencement time; and

                             (ii)  is related to the nature of the work to be performed by the employee; and

                            (iii)  is objectively ascertainable when it occurs.

Note:          Examples of seasons are:

(a)           the part of a year characterised by particular conditions of weather or temperature;

(b)           the part of a year when a product is best or available;

(c)           the part of a year marked by certain conditions, festivities or other activities.

           (10)  The regulations may provide that a particular period is, or is not, a season for the purposes of subsection (8).

Exclusions from sections 660 and 661 and Subdivision D

           (11)  The following kinds of employee are excluded from the operation of sections 660 and 661 and Subdivision D:

                     (a)  a casual employee, except a casual employee engaged for a short period within the meaning of subsection (4);

                     (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 provision of a State law that is not excluded under section 16.

Note 2:       The definitions in section 642 apply for the purposes of this section.

Relationship between subsections (1) and (11)

           (12)  If, but for this subsection, an employee would be covered by both subsections (1) and (11), 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).