Title Workplace Relations Amendment (Fair Dismissal) Bill 2004
Database Explanatory Memoranda
Date 03-06-2004
Source House of Reps
System Id legislation/ems/r2069_ems_e58d1ab0-e195-4c05-b5d9-ddbf8e8732a2

Workplace Relations Amendment (Fair Dismissal) Bill 2004




















































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

the Honourable Kevin Andrews MP)




Clause 1: Short title


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


Clause 2: Commencement


This clause specifies when various provisions of the Act are proposed to commence.


Sections 1 to 3 will commence on Royal Assent.  Schedule 1 will commence on a day to be fixed by Proclamation. However, if it has not commenced within 6 months after Royal Assent, it commences on the first day after that period. 


Clause 3: Schedule(s)


Clause 3 provides that an Act specified in a Schedule to this Act is amended or repealed as set out in the Schedule, and that any other item in a Schedule operates according to its terms. 




Item 1: Subsection 170CE(1)


1.1         Item 1 proposes to amend subsection 170CE(1) to include a reference to proposed subsection 170CE(5C).  Section 170CE(1) sets out the grounds on which an employee may seek an order from the Commission in respect of a termination of employment.  Proposed subsection 170CE(5C) (see item 2 below) would exclude certain employees of small business from making unfair dismissal applications.  It would not prevent small business employees from making applications on other grounds set out in section 170CE.


Item 2: Before subsection 170CE(6)


1.2       Item 2 would insert new subsections 170CE(5C), (5D) and (5E) into the Act.  The effect of these provisions would be to prevent employees of small business (except apprentices and trainees) from applying for an unfair dismissal remedy.


New subsection 170CE(5C)


1.3       New subsection 170CE(5C) would provide that an unfair dismissal application (or an application including an unfair dismissal claim) may not be made under subsection 170CE(1) where, at the relevant time, the respondent employer employed fewer than 20 people.  All regular employees must be counted when calculating the number of employees employed.  This includes, but is not limited to, the employee who has been terminated (see paragraph 170CE(5C)(a) and casual employees who have been engaged by the employer on a regular and systematic basis for at least 12 months, but no other casual employees (see paragraph 170CE(5C)(b)). 


New subsection 170CE(5D)


1.5       New subsection 170CE(5D) would provide that the small business exemption in subsection 170CE(5C) does not apply where an applicant for an unfair dismissal remedy was, at the relevant time, an apprentice or a trainee under a traineeship in respect of which he or she had signed a training agreement registered with a State or Territory training authority.


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


1.7       It should be noted that, although apprentices and trainees would not be affected by the proposed small business exemption, they may be excluded from seeking an unfair dismissal remedy 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 paragraph 170CB(1)(a) of the Act.  However, this will depend on the terms of the particular contract or indenture of apprenticeship. 


New subsection 170CE(5E)


1.8       New subsection 170CE(5E) would define the term ‘relevant time’ used in new subsections 170CE(5C) and (5D).  The term 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.  


Item 3: After section 170CEA


New section 170CEB – Dismissal of applications that cannot be made because of the small business exemption


1.9       New subsection 170CEB(1) would provide that the Commission must order that an unfair dismissal application is not validly made if it is satisfied that, because of the small business exemption set out in new subsection 170CE(5C), the employee was not entitled to make the application.


1.10       New subsection 170CEB(2) would clarify that the Commission is not required to hold a hearing before making such an order.  In deciding whether to hold a hearing, the Commission would be required to take into account the costs to the employer of attending.


1.11       New subsection 170CEB(3) would give the Commission the power, before making an order under this section, to request the employer or the employee to provide further information during a specified period.  For instance, information may be required to assist the Commission in determining whether an application had been made against an employer with fewer than 20 employees.  New subsection 170CEB(4) would require the Commission to have regard to any further information received during the specified period.  These provisions would not prevent the Commission from sending out further notices requesting more information, in light of information already received.


Item 4: After subsection 170JD(3)


1.12       Section 170JD of the WR Act provides that the Commission may vary or revoke an order under Part VIA, on application by a party (or their representative) who is covered by the order.  New subsection 170JD(3A) would clarify that a person who is covered by an order made under section 170CEB is not entitled to apply to have that order varied or revoked.


Item 5: After subsection 170JF(2)


1.13       Section 170JF of the WR Act provides that a party who is entitled to apply to vary or revoke an order under section 170JD is entitled to appeal to a Full Bench of the Commission under section 45 of the WR Act against an order under Part VIA.  New subsection 170JF(2A) would clarify that there is no right to appeal to a Full Bench against an order under section 170CEB.


Item 6: Application of amendments


1.14     Item 6 would provide that the proposed amendments set out in the Schedule apply to unfair dismissal applications made by employees if the employment to which the application relates started after the commencement of the provisions.