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Wednesday, 8 August 2001
Page: 25819


Senator MURRAY (9:31 AM) —I refer the committee to schedule 1, item 11 on the running sheet, attended to by amendment No. 5 on my sheet No. 2000. With the permission of the committee, I would like to move amendment No. 23 on my sheet No. 2000 together with amendment No. 5, because they hang together.

Leave granted.


Senator MURRAY —I move:

(5) Schedule 1, item 11, page 5 (line 21) to page 6 (line 10), omit the item, substitute:

11 At the end of subsection 170CE(7)

Add “, or within such period as the Commission allows on an application made during or after those 21 days.”.

11A At the end of subsection 170CE(7A)

Add “, or within such period as the Commission allows on an application made during or after those 21 days.”.

Note: In Brodie-Harris v MTV Publishing Ltd (1995) 67 IR 298 the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.

11B Subsection 107CE(8)

Repeal the subsection.

(23) Schedule 1, item 36, page 16 (lines 14 to 35), omit the item, substitute:

36 At the end of subsection 170CP(6)

Add “, or within such period as a court allows on an application made during or after those 14 days”.

Note: In Brodie-Harris v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.

36A Subsection 170CP(7)

Repeal the subsection.

My amendments (5) and (23) refer to items 11 and 36 in the Workplace Relations Amendment (Termination of Employment) Bill 2000 that refer to the discretion of the Industrial Relations Commission and the Federal Court to grant extensions of time to apply for a remedy. These items respectively amend subsections 170CE(8) and 170CP(7), which concern extensions of time to apply to the commission and to the Federal Court or a court of competent jurisdiction for a termination of employment remedy. The intention of the amendments is to tighten the discretion that these tribunals have to grant extensions of time so that it is similar to the discretion that applied under the termination of employment provisions of the former Labor government's Industrial Relations Act 1988.

In substance, the provisions state that the relevant tribunal may accept an application that is lodged out of time only if it is satisfied that it would be equitable to accept the application. Subsections 170CE(8A) and 170CP(8) then set out the factors to which the commission or court is to have regard in determining whether it would be equitable to accept the application out of time.

The tests proposed by items 11 and 36, in my view, should be deleted and replaced with the words in proposed Democrat amendments Nos 5 and 23. Those words are taken from the extension of time provision contained in subsection 170EA(3) of the former Labor government's Industrial Relations Act. I think our amendments are an improvement on the government's proposal.