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1998-1999-2000-2001
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
SENATE
WORKPLACE RELATIONS AMENDMENT (TERMINATION OF EMPLOYMENT)
BILL 2000
SUPPLEMENTARY EXPLANATORY
MEMORANDUM
(Amendments to be moved on behalf of the
Government)
(Circulated by
authority of the Minister for Employment, Workplace Relations
and Small
Business, the Honourable Tony Abbott MP)
ISBN: 0642 459541
(Amendments to be moved on behalf of the
Government)
Amendments are proposed to the termination of employment provisions of the
Workplace Relations Act 1996 (WR Act) to impose a three- month qualifying
period of employment before an employee would be entitled to apply for a remedy
in respect of harsh, unjust or unreasonable termination of employment.
The period will not apply to claims in respect of unlawful termination
of employment (that is, termination in contravention of section 170CK, 170CL,
170CM or 170CN of the WR Act).
The qualifying period is intended to
operate as a ‘default’ provision – there would be capacity for
the employer and the employee to a different period, provided that such
agreement is in writing, and is entered into in advance of the employment.
Where the employer and employee agree to a longer period, there will still be a
requirement that the period be reasonable, having regard to the nature and
circumstances of the employment.
The proposed amendments are not expected to have any impact on
Commonwealth expenditure.
Amendment No. 1 – page 5 (after line 13), after item 9,
insert:
Item 9A – Subsection 170CE(1)
Amendment No. 1
is consequential upon the changes proposed by Amendment No. 2. New item 9A
would amend subsection 170CE(1) of the WR Act to insert a reference to proposed
new subsection 170CE(5A). At present, subsection 170CE(1) provides that,
subject to subsection (5), a person can apply for a remedy in respect of
termination of employment on the grounds set out in the succeeding paragraphs.
The inclusion of the reference to subsection (5A) would have the effect
of ensuring that a person who was serving a ‘qualifying period of
employment’ within the meaning of subsection (5A) was not eligible to
apply for a remedy in respect of harsh, unjust or unreasonable termination of
employment.
Amendment No. 2 – page 5 (after line 20),
after item 10, insert:
Item 10A – After subsection
170CE(5)
Amendment No. 2 would insert new subsections (5A) and (5B).
New subsection (5A) would have the effect that a person would not be
entitled to apply for a remedy in respect of termination of employment on the
grounds that the termination was harsh, unjust or unreasonable [ie the ground
referred to in paragraph 170CE(1)(a)] unless that person had completed a
‘qualifying period of employment’.
To be eligible to apply
for a remedy, the person must have completed the qualifying period of employment
at the earlier of the following times:
• the time that the employer
gave the person notice of termination; or
• the time when the employer
terminated the employee’s employment.
New subsection (5B) sets
out the content of the qualifying period. Paragraph (5B)(a) establishes a
‘default’ period of three months. Paragraph (5B)(b) allows for a
shorter, or no, qualifying period, to be determined by written agreement between
the employer and employee before the commencement of the employment.
Paragraph (5B)(c) provides for the setting of a qualifying period longer
than three months by written agreement before the commencement of the employment
– however, any such longer period must be reasonable, having regard to the
nature and circumstances of the employment. If the Australian Industrial
Relations Commission finds that the period is not reasonable, having regard to
the nature and circumstances of the employment, then the employee will be
entitled to apply for a remedy in respect of harsh, unjust or unreasonable
termination of employment.
Amendment No. 3 – page 20 (after line 10), after line 42,
insert:
Amendment no. 3 would insert a new application provision into the Bill to
make clear that the amendments pertaining to the three month qualifying period
would apply in relation to applications in respect of termination of employment
where the employment to which the application relates commenced on or after the
date on which the items commence.