Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day on which this Act receives the Royal Assent
2. Schedule 1, items 1 to 3	A single day to be fixed by Proclamation, subject to subsection (3)
3. Schedule 1, item 4	The later of: (a) the commencement of items 1 to 3 of Schedule 1; and (b) immediately after the commencement of item 1 of Schedule 1 to the Workplace Relations Amendment (Fair Termination) Act 2002
4. Schedule 1, items 5 to 12	At the same time as the provisions covered by item 2 of this table
5. Schedule 1, item 13	At the same time as the provision covered by item 3 of this table
6. Schedule 2	A single day to be fixed by Proclamation, subject to subsection (3)
7. Schedule 3, item 1	A single day to be fixed by Proclamation, subject to subsection (3)
8. Schedule 3, item 2	The later of: (a) immediately after the commencement of Schedule 2; and (b) immediately after the commencement of item 1 of Schedule 3
9. Schedule 3, items 3 and 4	At the same time as the provision covered by item 7 of this table
10. Schedule 3, items 5 to 7	At the same time as the provision covered by item 8 of this table
11. Schedule 3, items 8 to 14	At the same time as the provision covered by item 7 of this table
12. Schedule 3, item 15	At the same time as the provision covered by item 8 of this table

Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.

(3) If a provision covered by item 2, 6 or 7 of the table does not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Covering the field of harsh, unjust or unreasonable termination

Part 1—Amendments

Workplace Relations Act 1996

1 At the end of section 5

Add:

(9) Subsections (6) and (8) are subject to section 170HA (which provides that Division 3 of Part VIA is intended to apply to the exclusion of some State laws that provide rights or remedies in respect of harsh, unjust or unreasonable termination of employment).

2 At the end of section 152

Add:

(6) This section is subject to section 170HA (which provides that Division 3 of Part VIA is intended to apply to the exclusion of some State laws, State awards and State employment agreements that provide rights or remedies in respect of harsh, unjust or unreasonable termination of employment).

3 Paragraph 170CB(1)(c)

Omit “a Federal award employee”, substitute “an employee”.

4 Subsection 170CBA(4)

Repeal the subsection, substitute:

(4) For the purposes of subparagraph (1)(f)(i), an employee is taken not to be employed under award conditions unless the employer is bound, in relation to the employee’s wages and conditions of employment, by:

(a) an award, a certified agreement, an AWA or an old IR agreement; or

(b) a State award or a State employment agreement.

5 Subsection 170CD(3)

Omit “or AWAs”, substitute “, AWAs, old IR agreements, State awards or State employment agreements”.

6 Subdivision F of Division 3 of Part VIA (heading)

Repeal the heading, substitute:

Subdivision F—Limitations on rights relating to termination of employment

7 Section 170HA

Repeal the section, substitute:

170HA Relationship with State and Territory termination of employment laws etc.

Intention to exclude State and Territory harsh etc. termination laws

(1) It is the intention of the Parliament that this Division apply to the exclusion of a provision (the State or Territory provision) of a law of a State or Territory if:

(a) the main purpose of the State or Territory law is to regulate workplace relations, employee relations or industrial relations; and

(b) the State or Territory provision provides rights or remedies in respect of harsh, unjust or unreasonable termination of employment (however described); and

(c) the State or Territory provision applies to an employee referred to in subsection 170CB(1).

However, this Division is only intended to exclude the State or Territory provision to the extent that the provision provides rights or remedies in respect of the harsh, unjust or unreasonable termination of the employment of such an employee.

Note: A State or Territory law is not intended to be excluded in respect of harsh, unjust or unreasonable termination:

(a) if the law has a main purpose other than regulating workplace relations, employee relations or industrial relations (such as an anti-discrimination law); or

(b) to the extent that the law applies to an employee who is not referred to in subsection 170CB(1).

(2) It is the intention of the Parliament that this Division apply to the exclusion of a provision of a State award or a State employment agreement if:

(a) the provision of the award or agreement provides rights or remedies in respect of harsh, unjust or unreasonable termination of employment (however described); and

(b) the provision of the award or agreement applies to an employee referred to in subsection 170CB(1).

However, this Division is only intended to exclude the provision of the award or agreement to the extent that the provision provides rights or remedies in respect of the harsh, unjust or unreasonable termination of the employment of such an employee.

(3) For the avoidance of doubt, subsections (1) and (2) apply in respect of every employee referred to in subsection 170CB(1), including employees who are excluded, by or under this Act, from applying to the Commission under section 170CE.

Regulations may identify provisions of State and Territory laws etc.

(4) If regulations made for the purposes of this subsection identify a provision of a State or Territory law, then the provision is, or is not, as specified in the regulations, taken to satisfy paragraphs (1)(a) and (b).

(5) If regulations made for the purposes of this subsection identify a provision of a State award or State employment agreement, then the provision is, or is not, as specified in the regulations, taken to satisfy paragraph (2)(a).

No intention to exclude other State and Territory termination of employment laws etc.

(6) Other than as provided by this section, it is not the intention of the Parliament that this Division apply to the exclusion of a State or Territory law, a State award or a State employment agreement.

8 Section 170HB

Repeal the section, substitute:

170HB Limitation on applications alleging unjust termination

(1) An application alleging unjust termination of employment must not be made if other termination proceedings have already been commenced in respect of the termination of employment, unless the other termination proceedings:

(a) have been discontinued by the party who began the proceedings; or

(b) have failed for want of jurisdiction.

Note: Subsection (3) defines an application alleging unjust termination and other termination proceedings.

(2) A person is not entitled to commence other termination proceedings in respect of a termination of employment if an application alleging unjust termination of the employment has already been made, unless the application:

(a) has been discontinued by the applicant; or

(b) has failed for want of jurisdiction.

Note: However, a person who makes an application alleging unjust termination that fails for want of jurisdiction because the person is excluded, by or under this Act, from applying to the Commission, would not be entitled to commence other termination proceedings under a State or Territory law in respect of the termination because of the operation of section 170HA.

(3) In this section:

application alleging unjust termination means an application under section 170CE, in respect of a termination of employment:

(a) on the ground that the termination was harsh, unjust or unreasonable; or

(b) on grounds that include that ground.

other termination proceedings means proceedings, in respect of a termination of the employment of an employee:

(a) for a remedy in respect of the termination:

(i) under a provision of this Act other than section 170CE; or

(ii) under another law of the Commonwealth; or

(iii) under a law of a State or Territory (other than a law to which section 170HA applies); and

(b) that allege that the termination was:

(i) harsh, unjust or unreasonable (however described); or

(ii) unlawful;

for any reason (other than a failure by the employer to provide a benefit to which the employee was entitled on the termination).

Note: Section 170HA provides that Division 3 of Part VIA is intended to apply to the exclusion of some State or Territory laws that provide rights or remedies in respect of harsh, unjust or unreasonable termination of employment.

(4) For the avoidance of doubt, a proceeding seeking compensation, or the imposition of a penalty, because an employer has failed, in relation to a termination of employment, to meet an obligation:

(a) to give adequate notice of the termination; or

(b) to provide a severance payment as a result of the termination; or

(c) to provide any other entitlement payable as a result of the termination;

is taken to be a proceeding alleging that the termination was unlawful because of a failure to provide a benefit to which the employee was entitled on the termination.

9 Section 170HC

Repeal the section, substitute:

170HC Limitation on applications alleging unlawful termination

(1) An application alleging unlawful termination of employment must not be made if other termination proceedings have already been commenced in respect of the termination of employment, unless the other termination proceedings:

(a) have been discontinued by the party who began the proceedings; or

(b) have failed for want of jurisdiction.

Note: Subsection (3) defines an application alleging unlawful termination and other termination proceedings.

(2) A person is not entitled to commence other termination proceedings in respect of a termination of employment if an application alleging unlawful termination of the employment has already been made, unless the application:

(a) has been discontinued by the applicant; or

(b) has failed for want of jurisdiction.

(3) In this section:

application alleging unlawful termination means an application under section 170CE, in respect of a termination of employment, on the ground that the termination constitutes a contravention of section 170CK because it was done for a reason set out in subsection 170CK(2).

other termination proceedings means proceedings, in respect of a termination of employment:

(a) for a remedy in respect of the termination:

(i) under a provision of this Act other than section 170CE; or

(ii) under another law of the Commonwealth; or

(iii) under a law of a State or Territory (other than a law to which section 170HA applies); and

(b) that allege that the termination was:

(i) harsh, unjust or unreasonable (however described); or

(ii) unlawful because it was done for a reason that is the same as, or substantially similar to, a reason set out in subsection 170CK(2).

Note: Section 170HA provides that Division 3 of Part VIA is intended to apply, in respect of an employee referred to in subsection 170CB(1), to the exclusion of some State or Territory laws that provide rights or remedies in respect of harsh, unjust or unreasonable termination of employment.

10 At the end of subsection 170LZ(3)

Add:

Note: The question of whether a State law provides protection for an employee against harsh, unjust or unreasonable termination of employment is affected by the operation of section 170HA.

11 At the end of subsection 170VR(3)

Add:

Note: The question of whether a State law provides protection for an employee against harsh, unjust or unreasonable termination of employment is affected by the operation of section 170HA.

Part 2—Application provisions

12 Application of items 1, 2, 3, 5, 6, 7, 8, 9, 10 and 11

The amendments made by items 1, 2, 3, 5, 6, 7, 8, 9, 10 and 11 only apply in relation to terminations of employment that occur after the commencement of those items (whether the employment commenced before or after that commencement).

13 Application of item 4

The amendment made by item 4 only applies in relation to terminations of employment that occur after the commencement of that item (whether the employment commenced before or after that commencement).

Schedule 2—Termination applications affecting small business

Part 1—Amendments

Workplace Relations Act 1996

1 Subsection 170CD(1)

Insert:

relevant time, in relation to a termination of employment, means the earlier of the following times:

(a) the time when the employer gave the employee notice of the termination;

(b) the time when the employer terminated the employee’s employment.

2 Subsection 170CD(1)

Insert:

small business employer, in relation to a termination of employment, means an employer who employs less than 20 people, including:

(a) the employee whose employment was terminated; and

(b) any casual employee who had been engaged on a regular and systematic basis for a sequence of periods of employment of at least 12 months;

but not including any other casual employee.

3 Paragraph 170CE(5B)(a)

Repeal the paragraph, substitute:

(a) either:

(i) 3 months (unless subparagraph (ii) applies); or

(ii) 6 months if, at the relevant time, the employer was a small business employer; or

4 Before section 170CF

Insert:

170CEC Dismissal of applications relating to small businesses

(1) This section applies if:

(a) an application is made, or is purported to have been made, under subsection 170CE(1):

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

(ii) on grounds that include that ground; and

(b) at the relevant time, the employer was a small business employer.

(2) If the Commission is satisfied that, because of another provision in this Division, the application cannot be made under subsection 170CE(1) on the ground referred to in paragraph 170CE(1)(a), the Commission must:

(a) if subparagraph (1)(a)(i) of this section applies—make an order that the application is not a valid application; or

(b) if subparagraph (1)(a)(ii) of this section applies—make an order that the application is not a valid application to the extent that it is made on that ground.

Note: The Commission is not required to hold a hearing in relation to the making of such an order: see subsection (4).

(3) If the Commission is satisfied that the application can be made under subsection 170CE(1), but is frivolous, vexatious or lacking in substance, in relation to the ground referred to in paragraph 170CE(1)(a), the Commission must:

(a) if subparagraph (1)(a)(i) of this section applies—make an order dismissing the application; or

(b) if subparagraph (1)(a)(ii) of this section applies—make an order dismissing the application to the extent that it is made on that ground.

Note: The Commission is not required to hold a hearing in relation to the making of such an order: see subsection (4).

(4) The Commission is not required to hold a hearing in relation to the making of an order under this section. In deciding whether to hold a hearing, the Commission must take into account the cost that would be caused to the employer’s business by requiring the employer to attend a hearing.

(5) Before the Commission makes an order under this section in relation to an application, the Commission:

(a) must, by notice in writing to the employee and the employer, invite the employee and the employer to provide, by the time specified in the notice, further information that relates to the application and that is relevant to whether this section requires the order to be made; and

(b) must take account of any such information so provided by the employee or employer.

5 After subsection 170CG(3)

Insert:

(3A) If, at the relevant time, the employer was a small business employer, the Commission must have regard to these matters, and no other matters, in determining, for the purposes of the arbitration, whether the termination was harsh, unjust or unreasonable:

(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer’s undertaking, establishment or service; and

(b) whether the employee was notified of that reason; and

(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and

(d) 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

(e) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination.

6 After paragraph 170CH(2)(a)

Insert:

(aa) the size of the employer’s undertaking, establishment or service; and

7 After paragraph 170CH(7)(a)

Insert:

(aa) the size of the employer’s undertaking, establishment or service; and

8 Paragraph 170CH(8)(a)

After “6 months”, insert “or, if subsection (8A) applies, 3 months,”.

9 After subsection 170CH(8)

Insert:

(8A) The period applicable under paragraph (8)(a) is 3 months if, at the relevant time, the employer was a small business employer.

10 Subsection 170CH(9)

After “that exceeds”, insert “the lesser of the amount described in paragraph (a), and the amount described in whichever of paragraphs (b) and (c) applies”.

11 Paragraph 170CH(9)(b)

Before “the amount of”, insert “if the employer was not a small business employer at the relevant time—”.

12 After paragraph 170CH(9)(b)

Insert:

or (c) if the employer was a small business employer at the relevant time—half the indexed amount applicable under paragraph (b);

13 Subsection 170CH(9)

Omit “whichever is the lower amount”.

14 At the end of section 170HH

Add:

(2) Without limiting paragraph (1)(a), if the application was dismissed under subsection 170CEC(3) because it was frivolous, vexatious or lacking in substance, the Court must have regard to the fact that the application was dismissed for that reason.

15 At the end of section 170JD

Add:

(4) This section does not apply to an order under section 170CEC (about dismissal of applications relating to small businesses).

16 At the end of section 170JF

Add:

(3) An appeal to a Full Bench under section 45 may not be made in relation to an order under section 170CEC (about dismissal of applications relating to small businesses).

Part 2—Application provisions

17 Application of items 3, 8, 9, 10, 11, 12 and 13

The amendments made by items 3, 8, 9, 10, 11, 12 and 13 only apply in relation to an application under section 170CE of the Workplace Relations Act 1996 if the employment to which the application relates commenced after the commencement of those items.

18 Application of items 4, 5, 6, 7, 14, 15 and 16

The amendments made by items 4, 5, 6, 7, 14, 15 and 16 only apply in relation to terminations of employment that occur after the commencement of those items (whether the employment commenced before or after that commencement).

Schedule 3—Other amendments relating to termination of employment

Part 1—Amendments

Workplace Relations Act 1996

1 Subsection 170CG(3)

Omit “In”, substitute “Unless subsection (4) applies, in”.

2 Subsection 170CG(3)

After “Unless subsection”, insert “(3A) or”.

3 Paragraph 170CG(3)(a)

Omit “the capacity or conduct of the employee”, substitute “the employee’s capacity or conduct (including its effect on the safety and welfare of other employees)”.

4 Paragraph 170CG(3)(a)

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

5 Subsection 170CG(3A)

Omit “If”, substitute “Unless subsection (4) applies, if”.

6 Paragraph 170CG(3A)(a)

Omit “the capacity or conduct of the employee”, substitute “the employee’s capacity or conduct (including its effect on the safety and welfare of other employees)”.

7 Paragraph 170CG(3A)(a)

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

8 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 harsh, unjust or unreasonable, unless the circumstances are exceptional.

9 After subsection 170CH(2)

Insert:

(2A) The Commission must not consider making an order requiring payment of an amount in lieu of reinstatement (see subsection (6)) unless it has first considered whether reinstatement of the employee is appropriate.

10 Paragraph 170CH(4)(b)

Omit “subsection (5)”, substitute “subsections (4A) and (5)”.

11 After subsection 170CH(4)

Insert:

(4A) In determining an amount for the purposes of an order under paragraph (4)(b), the Commission must have regard to:

(a) the amount of any income earned by the employee from employment or other work during the period between termination and the Commission making the order for reinstatement; and

(b) the amount of any income reasonably likely to be so earned by the employee during the period between the Commission making the order for reinstatement and actual reinstatement.

12 Subsection 170CH(7)

Omit “subsection (8)”, substitute “subsections (7A), (8) and (9)”.

13 After subsection 170CH(7)

Insert:

(7A) If the Commission is satisfied that misconduct of the employee contributed to the employer’s decision to terminate the employee’s employment, the Commission must reduce the amount it would otherwise fix under subsection (6) (as affected by subsection (7)) by an appropriate amount on account of that misconduct.

Note: After applying this subsection, the Commission must then apply whichever of subsections (8) and (9) is relevant.

Part 2—Application provisions

14 Application of items 1, 3, 4 and 8 to 13

The amendments made by items 1, 3, 4 and 8 to 13 only apply in relation to terminations of employment that occur after the commencement of those items (whether the employment commenced before or after that commencement).

15 Application of items 2, 5, 6 and 7

The amendments made by items 2, 5, 6 and 7 only apply in relation to terminations of employment that occur after the commencement of those items (whether the employment commenced before or after that commencement).

 

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