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HOUSE OF REPRESENTATIVES
OF EMPLOYMENT) BILL 2000
EXPLANATORY
MEMORANDUM
(Circulated
by authority of the Minister for Employment, Workplace Relations and Small
Business, the Honourable Peter Reith MP)
WORKPLACE RELATIONS AMENDMENT
(TERMINATION
OF EMPLOYMENT) BILL 2000
This Act will amend the Workplace Relations Act 1996 (the WR Act)
to:
• prevent forum-shopping by employees who are entitled to a
remedy under the WR Act in respect of harsh, unjust or unreasonable
termination;
• make clear that persons engaged pursuant to a
contract for services are not entitled to apply for a remedy in respect of
termination of employment;
• preclude an employee who has been
demoted in his or her employment from seeking relief in respect of termination
of employment where the demotion does not result in a significant reduction in
remuneration and the employee continues in employment with the employer who
effected the demotion;
• identify the matters to which the
Australian Industrial Relations Commission (the Commission) and the Federal
Court are to have regard in exercising their discretion to grant extensions of
time for lodgement of applications in respect of both ‘harsh, unjust and
unreasonable’ (unfair) termination and ‘unlawful’
termination;
• provide that, in certain circumstances, a respondent
to an application in respect of termination of employment can seek to have a
motion for dismissal of the application for want of jurisdiction dealt with at
any time;
• confer power on the Commission to prevent an applicant
for a remedy in respect of harsh, unjust or unreasonable termination proceeding
to arbitration where the Commission forms the view that the application has a
substantial prospect of being unsuccessful at
arbitration;
• require the Commission to have regard to 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, in considering whether a termination is harsh, unjust or
unreasonable;
• limit the Commission’s jurisdiction to find
that a termination of employment is harsh, unjust or unreasonable where the
employer can establish that the termination was effected because of the
operational requirements of the employer’s undertaking, establishment or
service;
• preclude the Commission and the Federal Court of
Australia from including in an amount to be paid to an employee in lieu of
reinstatement a component by way of compensation for shock, distress or
humiliation, or other analogous hurt, caused by the manner of terminating the
employee’s employment;
• confer power on the Commission to
require a representative who has been retained pursuant to a contingency fee
agreement or costs arrangement to disclose that fact to the
Commission;
• confer express power on the Commission to dismiss an
application in respect of a termination of employment if the applicant fails to
attend a proceeding;
• widen access to costs orders and clarify
that costs can be awarded in jurisdictional, costs and appeal
proceedings;
• confer power on the Commission to require an
applicant to lodge an amount as security for any costs that might be awarded
against him or her;
• prevent an applicant from making two
applications in relation to the same termination of employment;
and
• introduce a new Subdivision G in Division 3 of Part VIA,
containing a prohibition on advisers from encouraging applicants to institute or
continue speculative or unmeritorious proceedings in respect of harsh, unjust or
unreasonable termination.
The Act will also make other minor or technical amendments.
The measures in this Act will have no significant impact on Commonwealth
expenditure.
1. This is a formal provision specifying the short title of the
Act.
Clause 2 - Commencement
2. This clause specifies when
the various provisions of the Act are proposed to commence.
3. Subclause
2(1) provides that clauses 1, 2 and 3 commence on the day on which the Act
receives the Royal Assent.
4. Subclause 2(2) provides that, subject to
subclauses (3) and (4), the remaining provisions of this Act commence on a day
or days to be fixed by Proclamation.
5. Subclause 2(3) has the effect
that if a provision of this Act does not commence under subsection (2) within 6
months of the day on which the Act receives the Royal Assent, it will commence
on the day following the end of that six month period. Subclause 2(3) operates
subject to subclause 2(4).
6. Subclause 2(4) provides that if the
Workplace Relations Amendment (Australian Workplace Agreements Procedures)
Act 2000 or the Workplace Relations Amendment (Secret Ballots for
Protected Action) Act 2000 commences prior to item 3 of Schedule 1 to this
Act, then that item does not commence.
Clause 3 -
Schedules
7. 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 – TERMINATION OF EMPLOYMENT
Part 1 – Amendment of the Workplace Relations Act 1996
Workplace Relations Act 1996
Item 1 –
Subsection 4(1)
1. Item 1 proposes to insert a definition of
‘contingency fee agreement’ in subsection 4(1) of the Act.
Item 2 – Subsection 4(1)
2. Item 2 proposes to
insert a definition of ‘legal practitioner’ in subsection 4(1) of
the Act.
Item 3 – Subsection 4(1)
3. Item 3 proposes
to amend subsection 4(1) to insert a definition of ‘old IR
agreement’. ‘Old IR agreement’ means an agreement certified
or approved under various now repealed provisions of the Act, and includes
enterprise flexibility agreements approved under Part VIB of the Industrial
Relations Act 1988, as in force immediately before the commencement of item
1 of Schedule 9 to the Workplace Relations and Other Legislation Amendment
Act 1996.
4. Item 4 permits the President of the Australian Industrial Relations
Commission (the Commission) to make rules in relation to the furnishing of
security for the payment of costs by a person bringing an application in respect
of termination of employment. Item 34 would insert new section 170CJA, which
would confer power on the Commission to order an applicant to lodge an amount as
security for costs that might be incurred in respect of his or her
claim.
Item 5 – Subsection 152(1A)
5. Item 5 proposes
the repeal of subsection 152 (1A) of the Act, as it has become redundant. At
present, subsection 152(1A) operates as an exception to subsection 152(1) of the
Act. Subsection 152(1) confirms that the provisions of a federal award prevail
over a State law or State award to the extent of any inconsistency, and that the
latter provision, to the extent of the inconsistency, is
invalid.
6. Subsection 152(1A) was included in the Act by the
Workplace Relations and Other Legislation Amendment Act 1996, and was
subsequently amended by the Workplace Relations and Other Legislation
Amendment Act 1997. The provision was included to ensure that a federal
award employee falling outside the scope of subsection 170CB(1) of the Act (and
therefore unable to apply under the Act for a remedy in respect of harsh, unjust
or unreasonable termination) would not be prevented from applying for remedy in
respect of harsh, unjust or unreasonable termination (however described) under
State law merely because his or her federal award contained a clause concerning
termination of employment – in particular, a clause pertaining to
termination, change and redundancy.
7. As a consequence of the
limitations placed on the Commission’s arbitral jurisdiction by section
89A of the Act, the only relevant clauses that the Commission can include in
awards are clauses concerning notice of termination, and redundancy pay.
Accordingly, federal awards can no longer be said to ‘cover the
field’ in respect of harsh, unjust or unreasonable termination of
employment. Accordingly, the exception in subsection 152(1A) is now
redundant.
8. Item 6 proposes to insert section 170CCA, which is a ‘covering
the field’ provision. It applies to the categories of employees mentioned
in subsection 170CB(1), that is:
• Commonwealth public sector
employees;
• Territory employees;
• employees employed by a
constitutional corporation; or
• employees engaged by certain employers
engaged in interstate and overseas trade and commerce
9. Proposed
section 170CCA is intended to preclude the above categories of employees (all of
whom are eligible to apply for a remedy under the Act in respect of harsh,
unjust or unreasonable termination) from applying for similar remedies under
State law.
10. Proposed subsection 170CCA(3) makes clear that a
reference to each of the categories of employee covered by subsection 170CB(1)
includes a reference to an employee who is excluded by the Act, or by the
Workplace Relations Regulations 1996 from a remedy or remedies under Division 3
of Part VIA of the Act.
Item 7 – Subsection 170CD(1) (definition
of Federal award employee)
11. Item 7 proposes to amend the
definition of ‘Federal award employee’ in subsection 170CD(1) of the
Act to insert a reference to ‘old IR agreement’. (A definition of
‘old IR agreement’ is to be inserted by item 3.) The amendment
proposed by item 7 would make clear that employees whose terms and conditions of
employment are governed by certified agreements and enterprise flexibility
agreements made under the former provisions of the Industrial Relations Act
1988 are ‘Federal award employees’, and therefore eligible to
seek a remedy in respect of harsh, unjust or unreasonable termination under
Subdivision B of Division 3 of Part VIA of the Act.
Item 8 –
After subsection 170CD(1)
12. Item 8 proposes to insert new
subsection 170CD(1A), which will make clear that persons engaged under a
contract for services (ie independent contractors) are not entitled to apply for
a remedy under the Act in respect of termination of employment.
Item 9 – After subsection 170CD(1A)
13. Item 9 proposes to insert new subsection 170CD(1B), which will provide
that, for the purposes of the termination of employment provisions of the Act
(Division 3 of Part VIA), the expressions ‘termination’, or
‘termination of employment’, do not include a demotion in employment
if the demotion does not involve a significant reduction in the remuneration of
the demoted employee, and the demoted employee remains employed with the
employer who effected the demotion.
Item 10 – At the end of subsection 170CE(1)
14. Item 10 proposes to insert a legislative note, drawing attention to new subsection 170CG(4), which will provide that if it is established that a termination was effected because of the operational requirements of the employer’s undertaking, establishment or service, the termination cannot be found to be harsh, unjust or unreasonable, unless the circumstances are exceptional. Subsection 170CG(4) would be inserted by item 27.
Item 11 – Subsection 170CE(8)
15. Item 11 proposes
the repeal of the existing subsection 170CE(8), and the insertion of new
subsections 170CE(8) and (8A).
16. Proposed subsection 170CE(8) would
change the current test for accepting applications lodged out of time from
requiring an assessment of whether ‘it would be unfair not to do so’
to whether ‘it would be equitable to accept the
application’.
17. Proposed subsection 170CE(8A) requires the
Commission, in determining whether it would be equitable to accept an
out-of-time application, to have regard only to the matters contained in the
provision.
18. The proposed legislative note makes clear that the
criteria in proposed subsection 170CE(8A) are derived from principles employed
by the Industrial Relations Court of Australia in Brodie-Hanns v MTV
Publishing Ltd (1995) 67 IR 298.
19. Item 12 proposes the insertion of a new section 170CEA. New
subsection 170CEA(1) would allow an employer respondent to an application in
respect of termination of employment to move for the dismissal of an application
under section 170CE on the grounds that the Commission does not have
jurisdiction to deal with the application. The respondent would be able to move
for the dismissal of an application at any stage of the proceedings, including
before the Commission has begun dealing with the application.
20. Where
the respondent moves for the dismissal of an application on jurisdictional
grounds prior to the matter being referred for conciliation by the Commission,
and the respondent has not made a previous jurisdictional objection, new
subsection 170CEA(2) would require the Commission to deal with the motion for
dismissal before taking any other action in relation to the application, unless
the respondent employer indicates that the jurisdictional objection may be dealt
with at a later time.
21. Where the respondent moves for the dismissal
of an application on jurisdictional grounds, and has done so previously, the
Commission must deal with the motion, but new subsection 170CEA(3) would provide
that the Commission may do so at any time it considers appropriate.
Item 13 – Paragraph 170CF(2)(b)
22. Item 13, in
conjunction with items 14 – 22, proposes to introduce a new process in
relation to progress to arbitration by the Commission of an application for a
remedy in respect of harsh, unjust or unreasonable termination of employment.
23. New paragraph 170CF(2)(aa) would apply where an applicant’s
claim in respect of termination of employment is on the ground, or includes the
ground that, the termination was harsh, unjust or unreasonable. In that
circumstance, the Commission must indicate to the parties whether or not the
Commission considers, on the balance of probabilities whether the
applicant’s claim in respect of harsh, unjust or unreasonable termination
is likely to succeed.
24. New paragraph 170CF(2)(b) would require the
Commission, in respect of grounds other than that of harsh, unjust or
unreasonable termination, to indicate to the parties its assessment of the
merits of the application insofar as it relates to that other ground or grounds.
25. Existing paragraph 170CF(2)(c), which permits the Commission to
recommend that an applicant elect not to pursue a ground or grounds of the
application, will be retained.
26. Item 14 proposes to insert new subsections 170CF(3), (4) and (5), which
will apply where the Commission has indicated, pursuant to paragraph
170CF(2)(aa), that, on the balance of probabilities, an application in respect
of harsh, unjust or unreasonable termination is unlikely to succeed. New
subsection 170CF(3) will require the Commission to invite the applicant to
provide further information in support of that ground within the period
specified by the Commission.
27. If the applicant does not provide
further information, or, after consideration of that additional material, the
Commission concludes that the applicant has a substantial prospect of being
unsuccessful at arbitration, it must issue a certificate to that
effect.
28. New subsection 170CF(5) will provide that the application in
respect of the ground of harsh, unjust or unreasonable termination is dismissed,
with effect from the date of issue of the certificate under new subsection
170CF(4).
Item 15 – Subsection 170CFA(1)
29. Item 15
proposes to repeal existing subsection 170CFA(1) and replace it with a new
subsection 170CFA(1).
30. Proposed subsection 170CFA(1) would apply
where the Commission indicates that, on the balance of probabilities, the
applicant is likely to succeed in arbitration on the ground referred to in
paragraph 170CE(1)(a) (ie that the dismissal was harsh, unjust or unreasonable).
In that circumstance, the applicant could elect to proceed to arbitration to
determine whether the dismissal was harsh, unjust or unreasonable, or to
discontinue the application.
Item 16 – Subsection
170CFA(2)
31. Item 16 proposes to amend existing subsection
170CFA(2). Subsection 170CFA(2), as amended, would apply where the Commission
finds, on the balance of probabilities, that the applicant’s claim in
respect of the ground of harsh, unjust or unreasonable termination is likely to
succeed, and the Commission’s certificate also identifies the ground of an
alleged contravention of section 170CM (ie failure to provide the requisite
period of notice of termination, or payment of compensation in lieu of notice)
as grounds in respect of which conciliation is, or is likely to be,
unsuccessful.
32. In this circumstance, the applicant could elect
to:
• proceed to arbitration to determine whether the dismissal was
harsh, unjust or unreasonable; and/or
• begin proceedings in a
court of competent jurisdiction in respect of the alleged contravention of
section 170CM; or
• not pursue either ground of the
application.
Item 17 – After subsection
170CFA(2)
33. Item 17 proposes the insertion of a new subsection
170CFA(2A). This provision would apply where the conciliation certificate
identifies the grounds mentioned in subsection 170CFA(2) as grounds where
conciliation is likely to be unsuccessful and where the Commission subsequently
concludes in a certificate given under new subsection 170CF(4) that the
applicant’s claim in respect of the ground of harsh, unjust or
unreasonable termination has a substantial prospect of being unsuccessful at
arbitration.
34. In this circumstance, the applicant can elect to
commence proceedings in a court of competent jurisdiction in respect of the
breach of section 170CM, or not to pursue this ground of the application. [New
subsection 170CF(5) provides that the application in respect of the ground of
harsh, unjust or unreasonable termination is taken to be dismissed as at the
date of issue of the certificate under new subsection 170CF(4)].
Item
18 – Subsection 170CFA(3)
35. Item 18 proposes the amendment of
existing subsection 170CFA(3). Where the Commission’s certificate
identifies the ground of alleged contravention of paragraph 170CE(1)(a) (ie
harsh, unjust or unreasonable termination), and one or more of the grounds
alleged contravention of one or more of the following
provisions:
• section 170CK – termination of employment on
prohibited grounds;
• section 170CL – employer’s
failure to notify the competent authority in the case where the employer is
proposing to terminate the employment of 15 or more employees for reasons of an
economic, technological or structural or similar nature;
• section
170CN – termination of employment in contravention of an order made by the
Commission under section 170FA of the Act
as grounds where the
conciliation has failed, or is unlikely to succeed, and the Commission also
indicates that, on the balance of probabilities, the applicant is likely to
succeed in arbitration on the ground of harsh, unjust or unreasonable
termination, the applicant can elect to proceed to arbitration to determine
whether the dismissal was harsh, unjust or unreasonable, or begin proceedings in
the Federal Court of Australia in respect of the alleged contraventions of one
or more of sections 170CK, 170CL or 170CN. Alternatively, the applicant can
elect not to pursue either aspect of the application.
Item 19 –
After subsection 170CFA(3)
36. Item 19 proposes the insertion of new
section 170CFA(3A). This provision would apply where the conciliation
certificate identifies the same grounds as those mentioned in subsection
170CFA(3) as grounds where conciliation is likely to be unsuccessful, and where
the Commission subsequently concludes in a certificate given under new
subsection 170CF(4) that the applicant’s claim in respect of 170CE(1)(a)
has a substantial prospect of being unsuccessful at arbitration.
37. In
this circumstance, the applicant could elect to commence proceedings in the
Federal Court of Australia in respect of a contravention of sections 170CK,
170CL and 170CN (or a combination of these where more than one breach has been
alleged), or not to pursue this ground of the application. [The application in
respect of the ground of 170CE(1)(a) (ie that the dismissal was harsh, unjust or
unreasonable), is taken to be dismissed as at the date of issue of the
subsequent certificate under new subsection 170CF(4).]
Item 20 –
Subsection 170CFA(5)
38. Item 20 proposes the amendment of existing
subsection 170CFA(5). Where the conciliation certificate identifies the grounds
of: harsh, unjust or unreasonable termination, an alleged breach of the notice
requirements in section 170CM, and an alleged contravention of one or more of
sections 170CK, 170CL or 170CN as grounds where conciliation has failed, or is
unlikely to succeed, and also indicates that, on the balance of probabilities,
the applicant is likely to succeed in arbitration on the ground of harsh, unjust
or unreasonable termination, the applicant would be able
to:
• elect to have the harsh, unjust or unreasonable termination
ground of the application arbitrated by the Commission and do nothing else;
or
• elect to have the harsh, unjust or unreasonable termination
ground of the claim arbitrated by the Commission, and apply to a court of
competent jurisdiction for an order in respect of the alleged contravention of
the requirement to provide notice of termination or compensation in lieu
(section 170CM); or
• apply to the Federal Court of Australia for a
remedy in respect of the alleged contravention of one or more of sections 170CK,
170CL or 170CN, as well as a remedy in respect of the alleged contravention of
section 170CM; or
• do none of the above.
Item 21 –
After subsection 170CFA(5)
39. Item 21 proposes the insertion of a
new subsection 170CFA(5A). This provision would apply where the conciliation
certificate identifies the same grounds as those mentioned in subsection
170CFA(5) as grounds where conciliation is likely to be unsuccessful and where
the Commission subsequently concludes in a certificate given under new
subsection 170CF(4) that the applicant’s claim in respect of the ground of
harsh, unjust or unreasonable termination has a substantial prospect of being
unsuccessful at arbitration.
40. An applicant in this position would be
able to elect do one, both or neither of the following:
• apply to
the Federal court for a remedy in respect of the alleged contravention of one or
more of sections 170CK, 170CL or 170CN;
• apply to a court of
competent jurisdiction for a remedy in respect of the alleged contravention of
section 170CM.
41. The applicant would not be entitled to proceed to
arbitration to determine whether his or her termination was harsh, unjust or
unreasonable, as this aspect of the application is taken to have been dismissed
from the date of issue of the subsection 170CF(4) certificate.
Item 22
– Subsections 170CFA(6) and (7)
42. Item 22 proposes the
inclusion of references to the new subsections proposed by items 17, 19 and 21
in subsections 170CFA(6) and (7).
Item 23 – Subsection
170CFA(7)
43. Item 23 proposes to omit the reference to subsection
170CFA(8), which would be repealed by item 24.
Item 24 –
Subsection 170CFA(8)
44. Item 24 proposes to repeal subsection
170CFA(8).
45. The effect of this amendment would be to remove an
applicant’s ability to apply for an extension of time to lodge an election
to proceed to arbitration of his or her claim in respect of harsh, unjust or
unreasonable termination of employment, or pursue a remedy in the Federal Court
of Australia in respect of an unlawful termination or a failure to provide
notice of termination.
Item 25 – Paragraph
170CG(3)(a)
46. Item 25 proposes the removal of the reference to a
valid reason for termination based on the operational requirements of the
employer’s undertaking, establishment or service. This is consequential
upon the amendment proposed by item 27.
Item 26 – After
paragraph 170CG(3)(d)
47. Item 26 proposes to add to the matters to
which the Commission must have regard in determining whether a termination was
harsh, unjust or unreasonable. In addition to the other matters listed in
subsection 170CG(3), the Commission would also be required to have regard to the
degree to which the size of the employer’s undertaking, establishment or
service would be likely to have on the procedures followed in effecting the
termination.
48. For example, where a respondent employer is a business
which is too small to have a separate human resources function, the Commission
would be required to take that fact into account when considering the extent (if
any) to which the procedures followed in effecting the termination have a
bearing on the issue of whether the employee’s termination was harsh,
unjust or unreasonable.
49. Item 27 proposes the insertion of new subsection 170CG(4). This
amendment would preclude the Commission from making a finding that the
termination of an employee or group of employees was harsh, unjust or
unreasonable where the respondent employer establishes that the employment was
terminated on the ground of the operational requirements of the employer’s
undertaking, establishment or service, unless the circumstances are
exceptional.
50. An employee who claims that his or her selection for
redundancy was for a prohibited reason [ie in contravention of a ground or
grounds in subsection 170CK(2)] would not be prevented from seeking relief in
the Federal Court of Australia for a remedy in respect of unlawful
termination.
Item 28 – Subsection 170CH(7)
51. Item 28 proposes an amendment to subsection 170CH(7); this amendment is
consequential upon the inclusion of new subsection 170CH(7A) by item
29.
Item 29 – After subsection 170CH(7)
52. Item 29
proposes to insert new subsection 170CH(7) into the Act. This provision would
preclude the Commission from including in an amount to be paid to an employee in
lieu of reinstatement a component by way of compensation for shock, humiliation,
distress or other analogous hurt, caused by the manner of terminating the
employee’s employment.
53. Item 30 proposes the insertion of new section 170CIA. New
subsections 170CIA(1) and (2) would empower the Commission to ask a person
appearing on behalf of a party to an unfair dismissal proceeding whether he or
she is engaged pursuant to a ‘costs arrangement’ or, in the case of
a legal practitioner, a ‘contingency fee
agreement’.
54. Subsection 170CIA(3) would require a representative
or legal practitioner to inform the Commission where they have been retained
under a costs arrangement or contingency fee agreement.
55. Definitions
of various terms are contained in proposed subsection 170CIA(5). The proposed
definition of ‘costs arrangement’ would not require a
representative’s payment to depend on his or her client being successful,
only to be related to the outcome of proceedings. (The same applies to the
definition of ‘contingency fee agreement’ in item 1.)
56. Item 30 also proposes the insertion of new section 170CIB. This
would confer an express power on the Commission to dismiss an application under
section 170CE in respect of termination of employment where the employee fails
to attend a proceeding in relation to the application.
57. Prior to
dismissing the application, the Commission would be required to give the
applicant a reasonable opportunity to be heard.
Item 31 –
Subsections 170CJ(2),(3),(4) and (5)
58. Item 31 proposes substantial
amendments to the provisions relating to costs orders under the termination of
employment provisions.
59. The new provisions would broaden the scope for
costs orders to be made in various ways. Firstly, additional tests in relation
to liability for costs would be inserted into section 170CJ so that more types
of behaviour that will give rise to liability.
60. Secondly, the
requirements for existing tests would be simplified to enable greater access to
costs.
61. Thirdly, the amendments to subsections 170CJ(2), (3) and (4)
would include express references to applications other than the initial
application under section 170CE.
New subsection
170CJ(2)
62. This amendment proposes to introduce a new test to
assess whether costs should be awarded against applicants to
proceedings.
63. The applicant or party instituting proceedings would be
liable for costs where the Commission decides that it should have been
reasonably apparent to the applicant or the party instituting proceedings that
the application or proceedings did not have a substantial prospect of
success.
64. The test in proposed subsection 170CJ(2) relates to the
merits of the application, but would not require the likelihood of success to be
as low as the ‘vexatious or without reasonable cause’ criteria in
subsection 170CJ(1). Where a party knew, or ought to have known, that it was
likely the application or proceeding would fail, then the Commission would have
the discretion to award costs, which is less than the level of certainty
required under subsection 170CJ(1).
New subsection
170CJ(3)
65. Proposed subsection 170CJ(3) restates the test for costs
contained in existing subsection 170CJ(2) (ie prior to its proposed amendment)
but with a slight alteration.
66. The requirement that the Commission
must have begun arbitrating an application under section 170CE before costs may
be awarded would be removed.
New subsection
170CJ(4)
67. Proposed subsection 170CJ(4) would allow costs to be
awarded against a party where the Commission is satisfied that an unreasonable
act or omission by that party in connection with the conduct of the proceeding
resulted in the other party to the proceeding incurring costs. An example is
where one party incurs costs in preparing a response to the other party’s
unwarranted procedural objection.
New subsection
170CJ(5)
68. It is proposed that subsection 170CJ(5) be amended to
provide that an application for an order for costs must be made within 14 days
after either an application or a proceeding in relation to an application under
section 170CE has finished, irrespective of how the application or proceeding
was resolved.
New subsection 170CJ(5A)
69. New subsection
170CJ(5A) would provide that the regulations may prescribe a schedule of costs
in relation to applications before the Commission, and to proceedings in
relation to an application under section 170CE.
Item 32 –
Subsection 170CJ(7)
70. Item 32 proposes a consequential amendment to
subsection 170CJ(7) to amend the reference to the subsection dealing with
schedule of costs.
71. Item 33 proposes the insertion of new subsection 170CJ(8), which
would contain a definition of ‘proceedings relating to an application
under section 170CE’ for the purposes of section 170CJ of the Act. The
new provision would list the types of proceedings that can result from an
application under section 170CE and which therefore could be the subject of
costs applications. The provision also makes clear that the list is not
exhaustive.
72. Item 34 proposes the insertion of a new section 170CJA, which would
confer power on the Commission to order a person bringing an application under
section 170CE to provide security in the event that the costs are awarded
against that person.
73. The Commission may only make such an order in
exceptional circumstances.
74. Proposed subsections 170CJA(3) and
170CJA(4) would give the Commission wide discretion to set and vary the amount
of security respectively.
75. New subsection 170CJA(5) would permit the
Commission to dismiss an application if security is not provided in accordance
with an order.
Item 35 – Subsection
170CL(2)
76. Section 170CL of the Act applies in the case where an
employer proposes to terminate the employment of 15 or more employees for
reasons of an economic, technological, structural or similar nature, or for
reasons including such reasons. At present, subsection 170CL(2) provides that
the employer must give written notification of the proposed terminations to the
Commonwealth Employment Service.
77. Item 35 proposes to amend subsection
170CL(2) to remove the reference to the Commonwealth Employment Service, and
provide that the notice must be given to a body prescribed by the regulations,
or, failing prescription of such a body, to the Secretary of the Department
administering the Act. It is intended to prescribe Centrelink in the
regulations, to reflect the fact that it currently receives the notices pursuant
to a service arrangement between the Chief Executive Officer of Centrelink and
the Secretary of the Department of Employment, Workplace Relations and Small
Business.
Item 36 – Subsection 170CP(7)
78. Item 36
proposes to amend the existing provisions pertaining to the discretion of the
Federal Court to grant an extension of time to an applicant to lodge an
application for a remedy in respect of unlawful termination.
79. The
proposed new test (which is that the Court must be satisfied that it would be
‘equitable’ to accept the application), and the criteria to which
the Federal Court is to have regard, are similar to those proposed by item 11.
The legislative note to be inserted at the end of subsection 170CP(8) is the
same as that proposed to be inserted by item 11 at the end of subsection
170CE(8A).
Item 37 – Paragraph 170CR(1)(c)
80. Item
37 proposes an amendment to paragraph 170CR(1)(c) of the Act; this amendment is
consequential upon the proposed insertion of new subsection 170CR(1A) by item
38.
Item 38 – After subsection 170CR(1)
81. Item 38
proposes to insert new subsection 170CR(1A), which would provide that any amount
of compensation ordered by the Federal Court to be paid to an employee in lieu
of reinstatement is not to include a component by way of compensation for shock,
distress or humiliation, or other analogous hurt, caused by the manner of
terminating the employee’s employment.
New section – No second applications under section 170CE
concerning same termination to be made.
82. Item 39 proposes the
insertion of new section 170HBA, which would expressly provide that an
application in respect of a termination of employment of an employee cannot be
made under section 170CE where a previous application was lodged under section
170CE in respect of the same termination of employment.
83. Item 40 proposes the insertion of new Subdivision G of Division 3 of
Part VIA, which would introduce an avenue of redress against advisers who
encourage applicants to institute or pursue unmeritorious or speculative claims
or proceedings.
84. New section 170HD sets out the relevant definitions for the purposes
of proposed Subdivision G.
85. In the proposed subdivision,
‘adviser’ means a person or body engaged for a fee or reward or a
person who is an employee, official or agent of a registered organisation of
employees, who represents an applicant in an unfair termination claim in that
capacity.
86. The definition of ‘encourage’ has been framed
so as to exclude a right to seek a remedy where an applicant instituted or
pursued an application and the adviser attempted to persuade the applicant not
to do so.
87. ‘Unfair termination application’ refers to an
application alleging harsh, unjust or unreasonable termination of employment as
the ground, or one of the grounds.
New section 170HE – Advisers
not to encourage applicants to make, or to pursue, certain
applications
88. New section 170HE would establish a prohibition on
an adviser encouraging an employee to make or pursue an application for unfair
termination if, on the facts that have been disclosed or ought reasonably to
have been apparent to the adviser, the adviser should have been, or should have
become, aware that the application had no reasonable prospect of
success.
89. New section 170HF would allow an application to be made to the
Federal Court of Australia for an order imposing a penalty on an adviser for
contravention of section 170HE. Such an application could be made by an
applicant to an unfair termination application, a respondent to an unfair
termination application, or the Minister.
90. An application to the Court
would only be able to be made after the relevant unfair termination application
had been determined, dismissed or discontinued. This is to prevent the use of
Subdivision G for tactical purposes by a party to an unfair termination
application.
91. Proposed subsection 170HF(4) expressly provides that the
law relating to legal professional privilege is not to be affected by the
requirements of this proposed Subdivision.
92. New section 170HG proposes to create a reverse onus of proof in
relation to proving whether the adviser contravened the prohibition in proposed
section 170HE. When an applicant for an order establishes a prima facie case of
a contravention of section 170HE, the adviser would be taken to have contravened
the section unless the adviser can establish the contrary on the balance of
probabilities.
93. The amendment recognises the fact that the evidence
which would be required to prove that an adviser encouraged an unmeritorious or
speculative claim might be difficult to obtain, particularly where an applicant
for a penalty is seeking a penalty against the adviser of the other party to the
unfair termination claim. In that circumstance, there may be evidence of
encouragement that is peculiarly within the knowledge of the adviser, and which,
without a shift in the onus of proof, might not otherwise be revealed.
94. New section 170HH would set out criteria that the Court must consider
when deciding whether the relevant unfair termination application had ‘no
reasonable prospect of success’.
95. Before deciding this issue,
the Court would be required to have regard to the outcome of the application
before the Commission, and, where relevant, the contents of any certificate
issued by the Commission under subsection 170CF(2) and subsection 170CF(4).
96. New section 170HI would allow the Court, where it considers it
appropriate to do so, to impose a penalty on an advisor who has been found to
contravene section 170HE. The Court would be able to impose monetary penalties,
up to a maximum of $10,000 for a body corporate, and $2,000 for an
individual.
Part 2 – Application and saving provisions
97. Part 2 makes provision for the operation of the amendments made by
this Schedule.
98. Item 41 would provide that the proposed amendments in relation to the
newly defined terms in section 4 of the Act, the obligation to disclose costs
arrangements and contingency fee agreements, and the Commission’s express
power to dismiss applications would apply in relation to those applications made
under section 170CE of the Act on or after the commencement of those
items.
99. Item 42 proposes that the amendments in relation to security for
costs would apply in relation to applications made under section 170CE of the
Act on or after the commencement of those items.
100. Item 43 proposes that the amendment in relation to the granting of
extensions of time to lodge applications under section 170CE in respect of
termination of employment would apply in relation to applications made under
section 170CE of the Act on or after the commencement of this item.
101. Item 44 deals with jurisdictional proceedings in relation to an
application under section 170CE of the Act instituted prior to the commencement
of item 12 but not yet determined at the commencement of that item. Such a
proceeding would be treated as if it were a motion for dismissal of an
application under new section 170CEA, and that provision would apply.
Item 45 – Application provision concerning certain certificates
given under subsection 170CF(2)
102. Item 45 proposes that the
amendments pertaining to the content of conciliation certificates, and the
requirement of the Commission to determine whether, on the balance of
probabilities, an application in respect of harsh, unjust or unreasonable
termination is likely to succeed, would apply in relation to applications made
under section 170CE on or after the date on which item 13 commences.
103. Item 46 proposes that the amendments to proposed paragraph 170CG(3)(a)
and proposed subsection 170CG(4) would apply in relation to applications made
under section 170CE of the Act made on or after the date on which those items
commence.
Item 47 – Application of item
26
104. Item 47 proposes that the amendment requiring the Commission
to have regard to the size of the respondent employer in determining whether a
termination is harsh, unjust or unreasonable would apply in relation to
applications made under section 170CE of the Act on or after the date on which
the item commences.
Item 48 – Application of items 31, 32 and
33
105. Item 48 proposes that the amendments to section 170CJ
concerning the circumstances in which the Commission may make orders for costs
would apply only in relation to a proceeding relating to an application under
section 170CE of the Act made on or after the date on which those items
commence.
Item 49 – Application of item
36
106. Item 49 proposes that the amendments pertaining to the test
for the granting of extensions of time to lodge an application in the Federal
Court of Australia for a remedy in respect of unlawful termination of employment
would apply in respect of applications under section 170CP of the Act made on or
after the day on which the item commences.
Item 50 – Application
provision concerning unmeritorious or speculative
proceedings
107. Item 50 proposes that applications for orders under
new Subdivision G of Part VIA, Division 3, would only be able to be made in
relation to applications under section 170CE of the Act made on or after the day
on which item 40 commences.