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Workplace Relations Amendment (Termination of Employment) Bill 2001
Schedule 1 Termination of employment

Part 1 Amendment of the Workplace Relations Act 1996

1  Subsection 4(1)

Insert:

contingency fee agreement means an agreement between a legal practitioner and a person under which:

                     (a)  the legal practitioner agrees to provide legal services; and

                     (b)  the payment of all, or a substantial proportion, of the legal practitioner’s costs is contingent on the outcome of the matter in which the practitioner provides the legal services for the person.

2  Subsection 4(1)

Insert:

legal practitioner means a legal practitioner (however described) of the High Court or of a Supreme Court of a State or Territory.

3  Subsection 4(1)

Insert:

old IR agreement means an agreement certified or approved under:

                     (a)  section 115, as in force immediately before the commencement of the Industrial Relations Amendment Act 1992 ; or

                     (b)  Division 3A of Part VI, as in force immediately before the commencement of Schedule 2 to the Industrial Relations Reform Act 1993 ; or

                     (c)  Part VIB, as in force immediately before the commencement of item 1 of Schedule 9 to the Workplace Relations and Other Legislation Amendment Act 1996 .

Note:       If the Workplace Relations Amendment (Australian Workplace Agreements Procedures) Act 2000 or the Workplace Relations Amendment (Secret Ballots for Protected Action) Act 2000 has already commenced, this item does not come into operation. See subsection 2(4).

4  At the end of subsection 48(1)

Add:

             ; and (e)  the furnishing of security for the payment of costs in respect of an application made under section 170CE.

5  Subsection 152(1A)

Repeal the subsection.

6  After section 170CC

Insert:

170CCA   Division to cover the field in certain cases

             (1)  The provisions of this Division, insofar as they relate to Commonwealth public sector employees covered by subsection 170CB(1), apply to the exclusion of:

                     (a)  the provisions of any law of a State; or

                     (b)  the provisions of any award made under such a law;

that relate to relief in respect of termination of the employment of such employees.

             (2)  The provisions of this Division, insofar as they relate to Federal award employees covered by paragraph 170CB(1)(c) or (d), apply to the exclusion of:

                     (a)  the provisions of any law of a State; or

                     (b)  the provisions of any award made under such a law;

that relate to relief in respect of termination of the employment of such employees.

             (3)  For the avoidance of doubt, a reference in this section to Commonwealth public sector employees covered by subsection 170CB(1), or Federal award employees covered by paragraph 170CB(1)(c) or (d), includes persons who are so covered even though they are, by virtue of the operation of any other provision of this Act, or of the regulations made for the purposes of section 170CC, excluded from the operation of particular provisions of Division 3.

7  Subsection 170CD(1) (definition of Federal award employee)

Omit “or an AWA”, substitute “, an AWA or an old IR agreement”.

8  After subsection 170CD(1)

Insert:

          (1A)  In this Division, employee does not include a person who is engaged under a contract for services.

9  After subsection 170CD(1A)

Insert:

          (1B)  For the purposes of this Division, termination or termination of employment does not include demotion in employment if:

                     (a)  the demotion does not involve a significant reduction in the remuneration of the demoted employee; and

                     (b)  the demoted employee remains employed with the employer who effected the demotion.

10  At the end of subsection 170CE(1)

Add:

Note:          Subsection 170CG(4) provides that if it is established that a termination was effected because of the operational requirements of the employer’s undertaking, establishment or service, the termination cannot be found to have been harsh, unjust or unreasonable unless there are exceptional circumstances.

11  Subsection 170CE(8)

Repeal the subsection, substitute:

             (8)  The Commission may accept an application that is lodged out of time only if the Commission is satisfied that it would be equitable to accept the application.

          (8A)  In determining whether it would be equitable to accept an application lodged out of time, the Commission may have regard only to the following matters:

                     (a)  whether there is an acceptable explanation for the delay in lodging the application;

                     (b)  whether the applicant took action of any kind to contest the termination of his or her employment;

                     (c)  whether the acceptance of the application would prejudice the respondent;

                     (d)  the merits of the substantive application;

                     (e)  considerations of fairness between the applicant and persons in a like position so far as the acceptance or rejection of the application is concerned.

Note:          The criteria set out above are derived from principles employed by the Industrial Relations Court of Australia in exercising a discretion to accept an application out of time in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

12  After section 170CE

Insert:

170CEA   Motions for dismissal of application for want of jurisdiction

             (1)  A respondent may move for the dismissal of an application under section 170CE on the ground that the application is outside the jurisdiction of the Commission at any time, including a time before the Commission has begun dealing with the application.

             (2)  If:

                     (a)  the respondent moves for the dismissal of an application on such a ground and has not previously so moved; and

                     (b)  the respondent so moves before the matter is referred for conciliation by the Commission;

the Commission must deal with the motion before taking any action, or any further action, on that application, unless the respondent indicates that the matter may be dealt with at a later time.

             (3)  If the respondent moves for the dismissal of an application on such a ground, having already so moved on a previous occasion, the Commission must deal with the motion but may do so at any time it considers appropriate.

13  Paragraph 170CF(2)(b)

Repeal the paragraph, substitute:

                    (aa)  if that ground or one of those grounds is the ground referred to in paragraph 170CE(1)(a)—must indicate to the parties whether or not the Commission considers on the balance of probabilities and, having regard to all matters before the Commission for the purposes of the conciliation, that the applicant’s claim in respect of the ground so referred to is likely to succeed; and

                     (b)  if that ground or any such ground is not the ground referred to in paragraph 170CE(1)(a)—must indicate to the parties the Commission’s assessment of the merits of the application insofar as it relates to that ground or to each such ground; and

14  At the end of section 170CF

Add:

             (3)  If:

                     (a)  the ground or one of the grounds of the application is the ground referred to in paragraph 170CE(1)(a); and

                     (b)  the Commission has indicated, on the balance of probabilities, that the applicant’s claim in respect of the ground so referred to is unlikely to succeed;

the Commission must invite the applicant to provide further information in support of that ground within a period specified by the Commission.

             (4)  If, in relation to an application to which subsection (3) applies:

                     (a)  the applicant does not provide further information regarding the applicant’s claim in respect of the ground referred to in paragraph 170CE(1)(a); or

                     (b)  after consideration of the original application and the further material provided by the applicant in support of that ground;

the Commission concludes that the application has a substantial prospect of being unsuccessful at arbitration, it must issue a certificate to that effect.

             (5)  If the Commission issues a certificate under subsection (4) in respect of an applicant’s claim in respect of the ground referred to in paragraph 170CE(1)(a), the application is dismissed, insofar as it relates to that ground, with effect from the date of issue of the certificate.

15  Subsection 170CFA(1)

Repeal the subsection, substitute:

             (1)  If:

                     (a)  in a certificate given under subsection 170CF(2), the Commission identifies only the ground referred to in paragraph 170CE(1)(a) as a ground where conciliation is, or is likely to be, unsuccessful; but

                     (b)  the Commission also indicates that it considers, on the balance of probabilities, that the applicant’s claim in respect of the ground is likely to succeed;

the applicant must elect either to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable or not to proceed.

16  Subsection 170CFA(2)

Omit all the words before “the applicant”, substitute:

             (2)  If:

                     (a)  in a certificate given under subsection 170CF(2), the Commission identifies only:

                              (i)  the ground referred to in paragraph 170CE(1)(a); and

                             (ii)  the ground of an alleged contravention of section 170CM;

                            as grounds where conciliation is, or is likely to be, unsuccessful; but

                     (b)  the Commission also indicates, in respect of the former ground, that it considers, on the balance of probabilities, that the applicant’s claim in respect of the ground is likely to succeed;

17  After subsection 170CFA(2)

Insert:

          (2A)  If:

                     (a)  in a certificate given under subsection 170CF(2), the Commission identifies only:

                              (i)  the ground referred to in paragraph 170CE(1)(a); and

                             (ii)  the ground of an alleged contravention of section 170CM;

                            as grounds where conciliation is, or is likely to be, unsuccessful; and

                     (b)  the Commission subsequently concludes, in a certificate given under subsection 170CF(4), that the applicant’s claim in respect of the former ground has a substantial prospect of being unsuccessful;

the applicant must elect either to begin proceedings in a court of competent jurisdiction for an order under section 170CR in respect of the alleged contravention of section 170CM or not to begin such proceedings.

18  Subsection 170CFA(3)

Omit all the words before “the applicant”, substitute:

             (3)  If:

                     (a)  in a certificate given under subsection 170CF(2), the Commission identifies only:

                              (i)  the ground referred to in paragraph 170CE(1)(a); and

                             (ii)  the ground of an alleged contravention of one or more of sections 170CK, 170CL and 170CN;

                            as grounds where conciliation is, or is likely to be, unsuccessful; but

                     (b)  the Commission also indicates, in respect of the former ground, that the Commission considers, on the balance of probabilities, that the applicant’s claim in respect of the ground is likely to succeed;

19  After subsection 170CFA(3)

Insert:

          (3A)  If:

                     (a)  in a certificate given under subsection 170CF(2), the Commission identifies only:

                              (i)  the ground referred to in paragraph 170CE(1)(a); and

                             (ii)  a ground or grounds of an alleged contravention of one or more of sections 170CK, 170CL and 170CN;

                            as grounds where conciliation is, or is likely to be, unsuccessful; and

                     (b)  the Commission subsequently concludes, in a certificate given under subsection 170CF(4), that the applicant’s claim in respect of the former ground, has a substantial prospect of being unsuccessful;

the applicant must elect to begin proceedings in the Court for an order under section 170CR in respect of the alleged contravention, or of any one or more of the alleged contraventions, or not to begin such proceedings.

20  Subsection 170CFA(5)

Omit all the words before “the applicant”, substitute:

             (5)  If:

                     (a)  in a certificate given under subsection 170CF(2), the Commission identifies:

                              (i)  the ground referred to in paragraph 170CE(1)(a); and

                             (ii)  the ground of an alleged contravention of section 170CM; and

                            (iii)  a ground or grounds of an alleged contravention of one or more of sections 170CK, 170CL and 170CN;

                            as grounds where conciliation is, or is likely to be, unsuccessful; but

                     (b)  the Commission also indicates, in respect of the ground referred to in paragraph 170CE(1)(a), that the Commission considers, on the balance of probabilities, that the applicant’s claim in respect of the ground is likely to succeed;

21  After subsection 170CFA(5)

Insert:

          (5A)  If:

                     (a)  in a certificate given under subsection 170CF(2), the Commission identifies:

                              (i)  the ground referred to in paragraph 170CE(1)(a); and

                             (ii)  the ground of an alleged contravention of section 170CM; and

                            (iii)  a ground or grounds of an alleged contravention of one or more of sections 170CK, 170CL and 170CN;

                            as grounds where conciliation is, or is likely to be, unsuccessful; and

                     (b)  the Commission subsequently concludes, in a certificate given under subsection 170CF(4), that the applicant’s claim in respect of the ground referred to in paragraph 170CE(1)(a) has a substantial prospect of being unsuccessful;

the applicant must elect to do either or both of the things permitted in subsection (4) or to do none of those things.

22  Subsections 170CFA(6) and (7)

Omit “(3), (4) or (5)” (wherever occurring), substitute “(2A), (3), (3A), (4), (5) or (5A)”.

23  Subsection 170CFA(7)

Omit all the words from and including “for all purposes”.

24  Subsection 170CFA(8)

Repeal the subsection.

25  Paragraph 170CG(3)(a)

Omit “or to the operational requirements of the employer’s undertaking, establishment or service”.

26  After paragraph 170CG(3)(d)

Insert:

                   (da)  the degree to which the size of the employer’s undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and

27  At the end of section 170CG

Add:

             (4)  If the employment of a particular employee or group of employees is terminated on the ground of the operational requirements of the employer’s undertaking, establishment or service, the termination is not to be taken to be harsh, unjust or unreasonable, unless the circumstances are exceptional.

28  Subsection 170CH(7)

Omit “Subject to subsection (8)”, substitute “Subject to subsections (7A) and (8)”.

29  After subsection 170CH(7)

Insert:

          (7A)  Any amount ordered by the Commission under subsection (6) to be paid to an employee in lieu of reinstatement may not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused by the manner of terminating the employee’s employment.

30  After section 170CI

Insert:

170CIA   Representatives to disclose contingency fee agreements

Representatives other than legal practitioners

             (1)  In a proceeding before the Commission, the Commission must ask a representative appearing on behalf of a party to the proceeding if the representative has been retained by the party under a costs arrangement as to the representative’s costs.

Legal practitioners

             (2)  In a proceeding before the Commission, the Commission must ask a legal practitioner appearing on behalf of a party to the proceeding if the practitioner has been retained by the party under a contingency fee agreement as to the practitioner’s costs.

Obligation of representative or practitioner

             (3)  If the representative or legal practitioner has been retained under a costs arrangement or contingency fee agreement (as the case may be), the representative or practitioner must inform the Commission of that fact.

No effect on law relating to legal professional privilege

             (4)  This section does not affect the law relating to legal professional privilege.

Definitions in this section

             (5)  In this section:

costs arrangement means an arrangement between people under which:

                     (a)  a person agrees to provide representation for another person before the Commission; and

                     (b)  the payment of all, or a substantial proportion, of the representative’s costs is contingent on the outcome of the proceeding before the Commission in which the representative represents the person.

proceeding before the Commission means one of the following proceedings in respect of an application under section 170CE by an employee whose employment has been terminated on the ground, or on grounds that include the ground, that the termination was harsh, unjust or unreasonable:

                     (a)  a proceeding for dismissal of the application on the ground that the application is outside jurisdiction;

                     (b)  conciliation proceedings under section 170CF;

                     (c)  arbitration proceedings under section 170CG.

representative means a person, other than a legal practitioner, appearing on behalf of a party to a proceeding before the Commission.

170CIB   Commission may dismiss application if applicant fails to attend

                   If an applicant in a proceeding relating to an application under section 170CE fails to attend the proceeding, the Commission, after giving the applicant a reasonable opportunity to be heard, may dismiss the application under section 170CE.

31  Subsections 170CJ(2), (3), (4) and (5)

Repeal the subsections, substitute:

             (2)  If the Commission is satisfied:

                     (a)  that a person ( first party ):

                              (i)  made an application under section 170CE; or

                             (ii)  began a proceeding relating to such an application; and

                     (b)  the first party did so in circumstances where it should have been reasonably apparent to the first party that there was not a substantial prospect of success in relation to the application or proceeding;

the Commission may, on an application under this section by the other party to the application or proceeding, make an order for costs against the first party.

             (3)  If the Commission is satisfied that a party ( first party ) to a proceeding relating to an application under section 170CE has acted unreasonably in failing:

                     (a)  to discontinue the proceeding; or

                     (b)  to agree to terms of settlement that could lead to the discontinuance of the application;

the Commission may, on an application under this section by the other party to the proceeding, make an order for costs against the first party.

             (4)  If the Commission is satisfied:

                     (a)  that a party ( first party ) to a proceeding relating to an application made under section 170CE caused costs to be incurred by the other party to the proceeding; and

                     (b)  that the first party caused the costs to be incurred because of the first party’s unreasonable act or omission in connection with the conduct of the proceeding;

the Commission may, on an application by the other party under this section, make an order for costs against the first party.

             (5)  An application for an order for costs under this section must be made within 14 days after the determination, discontinuance, settlement or dismissal of the application under section 170CE or proceeding relating to an application under section 170CE (as the case may be).

          (5A)  A schedule of costs may be prescribed in relation to items of expenditure likely to be incurred in respect of:

                     (a)  an application to the Commission under section 170CE; and

                     (b)  a proceeding in respect of an application under section 170CE.

32  Subsection 170CJ(7)

Omit “subsection (5)”, substitute “subsection (5A)”.

33  At the end of section 170CJ

Add:

             (8)  For the purposes of this section, the following proceedings are examples of proceedings relating to an application under section 170CE in respect of which the Commission may make an order for costs:

                     (a)  a “pre-conciliation” conference that parties are directed to attend by the Commission under paragraph 111(1)(t);

                     (b)  a proceeding for dismissal of an application under section 170CE on the ground that the application is outside jurisdiction;

                     (c)  conciliation proceedings under section 170CF;

                     (d)  arbitration proceedings under section 170CG;

                     (e)  an appeal to the Full Bench from an order of the Commission under section 170CH or a costs order under section 170CJ;

                      (f)  a proceeding concerning an application for costs by one party in respect of another party’s application for costs.

This list is not an exhaustive list.

34  After section 170CJ

Insert:

170CJA   Security

             (1)  The Commission may order an applicant under section 170CE to give security for the payment of costs that may be awarded against the applicant.

             (2)  The Commission may make an order under subsection (1) only in exceptional circumstances.

             (3)  The security may be of such amount, and given at such time and in such manner and form, as the Commission directs.

             (4)  The Commission may reduce or increase the amount of security ordered to be given and may vary the time at which, or manner or form in which, the security is to be given.

             (5)  If security, or further security, is not given in accordance with an order under this section, the Commission may order that the proceeding be dismissed.

35  Subsection 170CL(2)

Omit “must give to the Commonwealth Employment Service a written notice of the intended terminations that sets out”, substitute “must give to the body (if any) prescribed by regulations made for the purposes of this subsection or, failing the prescription of such a body, to the Secretary of the Department, a written notice of the intended terminations, in a form prescribed by the regulations, that sets out”.

36  Subsection 170CP(7)

Repeal the subsection, substitute:

             (7)  The Court may accept an application that is lodged out of time only if the Court is satisfied that it would be equitable to accept the application.

             (8)  In determining whether it would be equitable to accept an application lodged out of time, the Court is to have regard to the following matters:

                     (a)  whether there is an acceptable explanation for the delay in lodging the application;

                     (b)  whether the applicant took action of any kind to contest the termination of his or her employment;

                     (c)  whether the acceptance of the application would prejudice the respondent;

                     (d)  the merits of the substantive application;

                     (e)  considerations of fairness between the applicant and persons in a like position so far as the acceptance or rejection of the application is concerned.

Note:          The criteria set out above are derived from principles employed by the Industrial Relations Court of Australia in exercising a discretion to accept an application out of time in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

37  Paragraph 170CR(1)(c)

Omit “subject to subsection (2)”, substitute “subject to subsections (1A) and (2)”.

38  After subsection 170CR(1)

Insert:

          (1A)  Any amount of compensation ordered by the Court under paragraph (1)(c) or (d) to be paid to an employee may not include a component by way of compensation for shock, distress, or humiliation, or other analogous hurt, caused by the manner of terminating the employee’s employment.

39  After section 170HB

Insert:

170HBA   No second applications under section 170CE concerning same termination to be made

                   An application must not be made under section 170CE in relation to a termination of employment of an employee where a previous application under section 170CE was made in respect of the same termination.

40  At the end of Division 3 of Part VIA

Add:

Subdivision G Unmeritorious or speculative proceedings

170HD   Definitions

                   In this Subdivision:

adviser means:

                     (a)  a person or body engaged for fee or reward to represent an applicant in an unfair termination application, including a person or body so engaged under a contingency fee agreement, or under a costs arrangement within the meaning of subsection 170CIA(5); or

                     (b)  a person who is an employee, official or agent of a registered organisation of employees and who represents an applicant in an unfair termination application in that capacity.

encourage , in relation to a course of action, means the promotion of that course of action as distinct from a failure to dissuade from that course of action.

unfair termination application means an application for relief under section 170CE by an employee whose employment has been terminated, on the ground, or on grounds that include the ground, that the termination was harsh, unjust or unreasonable.

170HE   Advisers not to encourage applicants to make, or to pursue, certain applications

                   An adviser must not encourage an employee to make or pursue an unfair termination application if, on the facts that have been disclosed or that ought reasonably to have been apparent to the adviser, the adviser should have been, or should have become, aware that there was no reasonable prospect of success in respect of the application.

170HF   Applications to the Court

             (1)  An application may be made to the Court for an order under section 170HI in respect of a contravention of section 170HE.

             (2)  The application may be made by:

                     (a)  the applicant in respect of an unfair termination application; or

                     (b)  a respondent to such an application; or

                     (c)  the Minister.

             (3)  An application under this section for an order in respect of a contravention of section 170HE may only be made after the relevant unfair termination application has been determined, dismissed or discontinued.

             (4)  Nothing in this Subdivision implies that, for the purposes of an application under this section, the law relating to legal professional privilege is abrogated, or in any way affected.

170HG   Burden of proof

                   In any proceedings for an order in respect of a contravention of section 170HE by an adviser, if the applicant for the order makes out a prima facie case that the course of action followed by the adviser contravened that section, the course of action will be taken to have contravened that section unless the adviser can establish to the contrary on the balance of probabilities.

170HH   Evidentiary matters

                   In any proceeding for an order in respect of a contravention of section 170HE in respect of an unfair termination application, the Court must not determine that there was no reasonable prospect of success in respect of the application unless it has had regard:

                     (a)  to the outcome of the application before the Commission; and

                     (b)  to the contents of any certificate issued by the Commission under subsection 170CF(2) and, where applicable, subsection (4).

170HI   Order that the Court may make

                   In respect of contraventions of section 170HE, the Court may, if the Court considers it appropriate in all the circumstances of the case, make an order imposing on the adviser who contravened that section a penalty:

                     (a)  if the adviser is a body corporate—of not more than $10,000; or

                     (b)  if the adviser is not a body corporate—of not more than $ 2,0 00.



 

Part 2 Application and saving provisions

41  Application of items 1, 2 and 30

The amendments of the Workplace Relations Act 1996 made by items 1, 2 and 30 apply only in relation to applications under section 170CE of that Act made on or after the date on which those items commence.

42  Application of items 4 and 34

The amendments of the Workplace Relations Act 1996 made by items 4 and 34 apply only in relation to applications under section 170CE of that Act made on or after the date on which that item commences.

43  Application of item 11

The amendment of the Workplace Relations Act 1996 made by item 11 applies only in relation to applications under section 170CE of that Act made on or after the date on which that item commences.

44  Saving provision concerning certain motions for dismissal

If, under the rules of the Commission as in force before the date of commencement of item 12, a respondent has elected to have jurisdictional issues in relation to an application under section 170CE of the Workplace Relations Act 1996 determined but those issues have not been determined before that date, that election is to be treated, on and after that date, as if it were a motion for dismissal of the application made under section 170CEA of the Workplace Relations Act 1996 as amended by that item.

45  Application provision concerning certificates given under subsection 170CF(2) of the Workplace Relations Act 1996

Subsection 170CF(2) of the Workplace Relations Act 1996 , as amended by item 13, applies only in relation to applications under section 170CE of that Act made on or after the date on which that item commences.

46  Application of items 25 and 27

The amendments of the Workplace Relations Act 1996 made by items 25 and 27 apply only in relation to applications under section 170CE of that Act made on or after the date on which those items commence.

47  Application of item 26

The amendment of the Workplace Relations Act 1996 made by item 26 applies only in relation to applications under section 170CE of that Act made on or after the date on which that item commences.

48  Application of items 31, 32 and 33

The amendments of the Workplace Relations Act 1996 made by items 31, 32 and 33 apply only in relation to a proceeding relating to an application under section 170CE of that Act made on or after the date on which those items commence.

49  Application of item 36

The amendment of the Workplace Relations Act 1996 made by item 36 applies only in relation to applications under section 170CP of that Act made on or after the date on which that item commences.

50  Application provision concerning unmeritorious or speculative proceedings

Subdivision G of Division 3 of Part VIA of the Workplace Relations Act 1996 , as inserted by item 40, applies only in relation to proceedings brought under that Subdivision in relation to applications under section 170CE of that Act made on or after the date on which that item commences.