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WORKPLACE RELATIONS AMENDMENT BILL
1997
OUTLINE
The Workplace Relations Amendment Bill
1997 will amend the Workplace Relations Act 1996 to exclude new employees
of small businesses from the operation of the Federal unfair dismissal
provisions.
Section 170CE of the Workplace Relations Act provides that an
employee whose employment has been 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 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), 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 he or she was employed by an employer
who employed no more than 15 employees.
The exclusion will not
affect:
- the rights of existing employees;
- the rights of
apprentices; or
- the rights of small business employees 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 provides the Act’s short title.
Clause 2 -
Commencement
This Act commences on Royal Assent.
Clause 3 -
Schedule(s)
This provides for the effect of the Schedule in amending
the Act to which it relates.
Workplace Relations Act 1996
Item 1 - Subsection
170CE(1)
1. This item is consequential on the amendment made by item
2, which includes a new subsection 170CE(5A) in section 170CE. This item
accordingly inserts a reference to new subsection 170CE(5A) into subsection
170CE(1).
Item 2 - After subsection 170CE(5)
2. This item
inserts two new subsections in section 170CE.
3. Section 170CE sets out
the prerequisites for an application to be lodged with the Commission in
relation to a termination. 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(5A)
4. This section will provide that an application may not be
made under subsection 170CE(1) on the ground that the termination was harsh,
unjust or unreasonable (or on grounds that include that ground) by an employee
(other than an apprentice) if:
• the employee was first employed by
the employer on or after the commencement of this amending Act;
and
• new subsection 170CE(5B) applies to the
employer.
5. In this subsection, the term ‘apprentice’ is to
have its ordinary meaning.
6. It should be noted that apprentices may be
excluded from the operation of the unfair dismissal provisions because 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). However,
this will depend on the particular contract or indentures of apprenticeship.
This amendment is not intended to affect the application of the
regulations.
New subsection 170CE(5B)
7. This section
applies to an employer for the purposes of subsection (5A) if, at the time the
employer gave the employee notice of the termination, or terminated the
employee’s employment (whichever happened first), the employer employed no
more than 15 employees.
8. The new subsection provides 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, it is provided that the employee whose employment was
terminated is to be counted. Secondly, it is provided 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).
1997
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF REPRESENTATIVES
WORKPLACE
RELATIONS AMENDMENT BILL 1997
EXPLANATORY
MEMORANDUM
(Circulated by authority of the Minister for
Industrial Relations,
the Honourable Peter Reith MP)