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2002-2003-2004
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
WORKPLACE RELATIONS AMENDMENT (FAIR
DISMISSAL) BILL 2004
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Employment and
Workplace Relations,
the Honourable Kevin Andrews MP)
OUTLINE
The Bill would amend the Workplace Relations Act
1996 (WR Act) to protect small businesses from unfair dismissal claims.
The Bill proposes to:
• prevent employees of small
businesses (other than apprentices and trainees) from applying under the WR Act
for a remedy in respect of harsh, unjust or unreasonable termination of
employment (‘unfair dismissal’); and
• require the
Australian Industrial Relations Commission (the Commission) to order that an
unfair dismissal application made by a small business employee is invalid, if
the Commission is satisfied that the application is outside the
Commission’s jurisdiction because of the small business exemption. The
Commission would have the power to make such an order without holding a
hearing.
For the purposes of this Bill, a ‘small business’ is
a business with fewer than 20 employees, including:
• any casual
employee who has been engaged by the employer on a regular and systematic basis
for at least 12 months (but not other casual employees); and
• the
employee whose employment was terminated.
The Bill has no financial impact on the Commonwealth Budget.
NOTES ON CLAUSES
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provides that an Act specified in a Schedule to this Act is amended or repealed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.
SCHEDULE 1 – WORKPLACE RELATIONS ACT 1996
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.