Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Workplace Relations Amendment (Protection for Emergency Management Volunteers) Bill 2003

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

 

 

 

 

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)



WORKPLACE RELATIONS AMENDMENT (PROTECTION FOR EMERGENCY MANAGEMENT VOLUNTEERS) BILL 2003

 

 

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.

 

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.

 

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.