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Workplace Relations Amendment (Unfair Dismissals) Bill 1998

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WORKPLACE RELATIONS AMENDMENT (UNFAIR DISMISSALS) BILL 1998

 

OUTLINE

 

The Workplace Relations Amendment (Unfair Dismissals) Bill 1998 will amend the Workplace Relations Act 1996 to:

 

·                  require a 6 month qualifying period of employment before new employees (other than apprentices and trainees) can access an unfair dismissal remedy under the Act; and

 

·                  exclude new employees of small businesses (other than apprentices and trainees) from the unfair dismissal remedy under the Act.

 

Section 170CE of the Workplace Relations Act 1996 provides that an employee whose employment has been terminated by the employer may apply to the Australian Industrial Relations Commission for relief on the ground that the termination was harsh, unjust or unreasonable, on the ground of an alleged contravention of section 170CK, 170CL, 170CM or 170CN, or on any combination of these grounds.

 

The amendments to be made by Schedule 1 to this Bill will provide that an employee (other than an apprentice or trainee), who is first engaged by the relevant employer after the commencement of the Bill, will not be able to make an application on the ground that the termination of his or her employment was harsh, unjust or unreasonable, or on grounds including that ground, if either:

 

·                  he or she had not completed six months continuous service with that employer; or

 

·                  his or her employer employed no more than 15 employees.

 

The exclusion will not affect:

 

·                  the rights of existing employees;

 

·                  the rights of apprentices or trainees; or

 

·                  the rights of small business employees and employees with less than six months service to take action against unlawful termination of employment.

 

FINANCIAL IMPACT STATEMENT

 

This Bill has no significant impact on Commonwealth expenditure.

 



NOTES ON CLAUSES

 

Clause 1 - Short title

 

This is a formal provision specifying the short title of the Act.

 

Clause 2 - Commencement

 

This Act is to commence on Royal Assent.

 

Clause 3 - Schedule

 

This clause provides for the effect of the Schedule in amending the Act to which it relates.

 



Workplace Relations Act 1996

 

Item 1 - Subsection 170CE(5)

 

1.      This item proposes the repeal of existing subsection 170CE(5) and substitution of new subsections 170CE(5), 170CE(5A) and 170CE(5B).

 

2.      Section 170CE sets out the prerequisites for an application to be lodged with the Australian Industrial Relations Commission in relation to a termination of employment.  Subsection 170CE(1) provides that an employee whose employment is terminated by the employer may apply to the Commission for relief on the ground that the termination was harsh, unjust or unreasonable, on the ground of an alleged contravention of section 170CK, 170CL, 170CM or 170CN, or on a combination of these grounds.

 

New subsection 170CE(5)

 

3.      New subsection 170CE(5) will provide that an application may not be made under subsection 170CE(1) on the ground that a termination was harsh, unjust or unreasonable (or on grounds that include this ground) by an employee unless:

 

·                  the employee was first employed by the employer before the commencement of this amending Act; or

 

·                  if the employee was first employed by the employer on or after the commencement of the amending Act, the employee, at the relevant time:

 

-                               was an apprentice; or

 

-                               was a trainee under a traineeship agreement registered with a State or Territory training authority; or

 

-                               fulfilled the requirements of subsection 170CE(5A).

 

4.              ‘Relevant time’ is defined as the time when the employer gave the employee notice of termination or the time when the employer terminated the employee’s employment, whichever happened first. 

 

5.              The terms ‘apprentice’, ‘trainee’, ‘traineeship agreement’ and ‘training authority’ are to have their ordinary meanings.

 

6.      It should be noted that apprentices and trainees, though not affected by this Bill, may be excluded from the operation of the unfair dismissal provisions for other reasons.  For example, apprentices may be excluded on the basis that they are engaged under a contract of employment for a specified period of time (within the meaning of Regulation 30B of the Workplace Relations Regulations, or other regulations in accordance with paragraph 170CC(1)(a) of the Act).  However, this will depend on the particular contract or indentures of apprenticeship.  Similarly, trainees may be excluded by the Regulations.  This Bill is not intended to affect the application of the Regulations as presently in force, or the scope for regulations under section 170CC.

 

New subsection 170CE(5A)

 

7.      This subsection will apply for the purposes of new subsection 170CE(5), to specify the requirements for an employee (other than an apprentice or trainee) to be allowed to make an application under subsection 170CE(1) on the ground that a termination was harsh, unjust or unreasonable (or on grounds that include that ground).  The requirements will be that, at the relevant time, the employee:

 

·                  had completed at least six months of continuous service with the employer; and

 

·                  was employed by an employer with more than 15 employees.

 

8.       The new subsection will also enable the regulations to prescribe matters to be disregarded in ascertaining a period of continuous service.  (Regulation 30CB of the Workplace Relations Regulations is an example of such a provision, framed for the purposes of section 170CM, which provides for determination of an employee’s entitlement to minimum notice on the basis of the employee’s period of continuous service.)

 

9.      The new subsection will also provide clarification as to which employees are to be counted, for the purpose of establishing whether the employer employed more than 15 employees at the relevant time.  Firstly, for the removal of doubt, the subsection will provide that the employee whose employment was terminated is to be counted.  Secondly, the new subsection will provide that any casual employee is not to be counted, unless that employee had been engaged on a regular and systematic basis for a sequence of periods of employment of at least 12 months (that is, the employee had been engaged on a regular and systematic basis at least 12 months before the time at which the employees are counted, and the employee was still engaged on a regular and systematic basis at the time at which the employees are counted).

 

New section 170CE(5B)

 

10.    This section restates existing paragraph 170CE(5)(b), which provides that an application alleging unlawful termination of employment may only be made if Subdivision C of Division 3 of Part VIA of the Act applies to the application (that is, in accordance with section 170CB and subject to regulations under section 170CC)

 



 

 

 

 

 

 

 

1998

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

WORKPLACE RELATIONS AMENDMENT (UNFAIR DISMISSALS) BILL 1998

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

(Circulated by the authority of the Minister for Employment, Workplace Relations

and Small Business, the Honourable Peter Reith MP)