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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000
The Parliament
of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Workplace
Relations Amendment (Termination of Employment) Bill
2000
No. ,
2000
(Employment, Workplace Relations and Small
Business)
A Bill for an Act to amend the
Workplace Relations Act 1996 so far as that Act relates to termination of
employment, and for related purposes
ISBN: 0642 439095
Contents
Part 1—Amendment of the Workplace Relations Act
1996 3
Part 2—Application and saving
provisions 20
A Bill for an Act to amend the Workplace Relations Act
1996 so far as that Act relates to termination of employment, and for
related purposes
The Parliament of Australia enacts:
This Act may be cited as the Workplace Relations Amendment
(Termination of Employment) Act 2000.
(1) This section, and sections 1 and 3, commence on the day on which
this Act receives the Royal Assent.
(2) Subject to subsections (3) and (4), the remaining provisions of
this Act commence on a day or days to be fixed by Proclamation.
(3) Subject to subsection (4), if a provision of this Act does not
commence under subsection (2) 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.
(4) If:
(a) the Workplace Relations Amendment (Australian Workplace Agreements
Procedures) Act 2000; or
(b) the Workplace Relations Amendment (Secret Ballots for Protected
Action) Act 2000;
has commenced before:
(c) a day fixed by Proclamation for the commencement of item 3 of
Schedule 1 to this Act under subsection (2); or
(d) in the absence of such a Proclamation—that item would commence
under subsection (3);
that item does not commence at all.
Subject to section 2, 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this Act is amended or repealed as set out in the applicable items in the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.
Part 1—Amendment
of the Workplace Relations Act 1996
1 Subsection 4(1)
Insert:
contingency fee agreement means an agreement between a legal
practitioner and a person under which:
(a) the legal practitioner agrees to provide legal services; and
(b) the payment of all, or a substantial proportion, of the legal
practitioner’s costs is contingent on the outcome of the matter in which
the practitioner provides the legal services for the person.
2 Subsection 4(1)
Insert:
legal practitioner means a legal practitioner (however
described) of the High Court or of a Supreme Court of a State or
Territory.
3 Subsection 4(1)
Insert:
old IR agreement means an agreement certified or approved
under:
(a) section 115, as in force immediately before the commencement of
the Industrial Relations Amendment Act 1992; or
(b) Division 3A of Part VI, as in force immediately before the
commencement of Schedule 2 to the Industrial Relations Reform Act
1993; or
(c) Part VIB, as in force immediately before the commencement of
item 1 of Schedule 9 to the Workplace Relations and Other
Legislation Amendment Act 1996.
Note: If the Workplace Relations Amendment (Australian
Workplace Agreements Procedures) Act 2000 or the Workplace
Relations Amendment (Secret Ballots for Protected Action) Act 2000 has
already commenced, this item does not come into operation. See subsection
2(4).
4 At the end of subsection
48(1)
Add:
; and (e) the furnishing of security for the payment of costs in respect
of an application made under section 170CE.
5 Subsection 152(1A)
Repeal the subsection.
6 After section 170CC
Insert:
(1) The provisions of this Division, insofar as they relate to
Commonwealth public sector employees covered by subsection 170CB(1), apply to
the exclusion of:
(a) the provisions of any law of a State; or
(b) the provisions of any award made under such a law;
that relate to relief in respect of termination of the employment of such
employees.
(2) The provisions of this Division, insofar as they relate to Federal
award employees covered by paragraph 170CB(1)(c) or (d), apply to the exclusion
of:
(a) the provisions of any law of a State; or
(b) the provisions of any award made under such a law;
that relate to relief in respect of termination of the employment of such
employees.
(3) For the avoidance of doubt, a reference in this section to
Commonwealth public sector employees covered by subsection 170CB(1), or Federal
award employees covered by paragraph 170CB(1)(c) or (d), includes persons who
are so covered even though they are, by virtue of the operation of any other
provision of this Act, or of the regulations made for the purposes of
section 170CC, excluded from the operation of particular provisions of
Division 3.
7 Subsection 170CD(1) (definition of Federal
award employee)
Omit “or an AWA”, substitute “, an AWA or an old IR
agreement”.
8 After subsection 170CD(1)
Insert:
(1A) In this Division, employee does not include a person
who is engaged under a contract for services.
9 After subsection
170CD(1A)
Insert:
(1B) For the purposes of this Division, termination or
termination of employment does not include demotion in employment
if:
(a) the demotion does not involve a significant reduction in the
remuneration of the demoted employee; and
(b) the demoted employee remains employed with the employer who effected
the demotion.
10 At the end of subsection
170CE(1)
Add:
Note: Subsection 170CG(4) provides 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 have been harsh, unjust or unreasonable unless there are exceptional
circumstances.
11 Subsection 170CE(8)
Repeal the subsection, substitute:
(8) The Commission may accept an application that is lodged out of time
only if the Commission is satisfied that it would be equitable to accept the
application.
(8A) In determining whether it would be equitable to accept an application
lodged out of time, the Commission may have regard only to the following
matters:
(a) whether there is an acceptable explanation for the delay in lodging
the application;
(b) whether the applicant took action of any kind to contest the
termination of his or her employment;
(c) whether the acceptance of the application would prejudice the
respondent;
(d) the merits of the substantive application;
(e) considerations of fairness between the applicant and persons in a like
position so far as the acceptance or rejection of the application is
concerned.
Note: The criteria set out above are derived from principles
employed by the Industrial Relations Court of Australia in exercising a
discretion to accept an application out of time in Brodie-Hanns v MTV
Publishing Ltd (1995) 67 IR 298.
12 After section 170CE
Insert:
(1) A respondent may move for the dismissal of an application under
section 170CE on the ground that the application is outside the
jurisdiction of the Commission at any time, including a time before the
Commission has begun dealing with the application.
(2) If:
(a) the respondent moves for the dismissal of an application on such a
ground and has not previously so moved; and
(b) the respondent so moves before the matter is referred for conciliation
by the Commission;
the Commission must deal with the motion before taking any action, or any
further action, on that application, unless the respondent indicates that the
matter may be dealt with at a later time.
(3) If the respondent moves for the dismissal of an application on such a
ground, having already so moved on a previous occasion, the Commission must deal
with the motion but may do so at any time it considers appropriate.
13 Paragraph 170CF(2)(b)
Repeal the paragraph, substitute:
(aa) if that ground or one of those grounds is the ground referred to in
paragraph 170CE(1)(a)—must indicate to the parties whether or not the
Commission considers on the balance of probabilities and, having regard to all
matters before the Commission for the purposes of the conciliation, that the
applicant’s claim in respect of the ground so referred to is likely to
succeed; and
(b) if that ground or any such ground is not the ground referred to in
paragraph 170CE(1)(a)—must indicate to the parties the Commission’s
assessment of the merits of the application insofar as it relates to that ground
or to each such ground; and
14 At the end of
section 170CF
Add:
(3) If:
(a) the ground or one of the grounds of the application is the ground
referred to in paragraph 170CE(1)(a); and
(b) the Commission has indicated, on the balance of probabilities, that
the applicant’s claim in respect of the ground so referred to is unlikely
to succeed;
the Commission must invite the applicant to provide further information in
support of that ground within a period specified by the Commission.
(4) If, in relation to an application to which subsection (3)
applies:
(a) the applicant does not provide further information regarding the
applicant’s claim in respect of the ground referred to in paragraph
170CE(1)(a); or
(b) after consideration of the original application and the further
material provided by the applicant in support of that ground;
the Commission concludes that the application has a substantial prospect of
being unsuccessful at arbitration, it must issue a certificate to that
effect.
(5) If the Commission issues a certificate under subsection (4) in
respect of an applicant’s claim in respect of the ground referred to in
paragraph 170CE(1)(a), the application is dismissed, insofar as it relates to
that ground, with effect from the date of issue of the certificate.
15 Subsection 170CFA(1)
Repeal the subsection, substitute:
(1) If:
(a) in a certificate given under subsection 170CF(2), the Commission
identifies only the ground referred to in paragraph 170CE(1)(a) as a ground
where conciliation is, or is likely to be, unsuccessful; but
(b) the Commission also indicates that it considers, on the balance of
probabilities, that the applicant’s claim in respect of the ground is
likely to succeed;
the applicant must elect either to proceed to arbitration to determine
whether the termination was harsh, unjust or unreasonable or not to
proceed.
16 Subsection 170CFA(2)
Omit all the words before “the applicant”,
substitute:
(2) If:
(a) in a certificate given under subsection 170CF(2), the Commission
identifies only:
(i) the ground referred to in paragraph 170CE(1)(a); and
(ii) the ground of an alleged contravention of
section 170CM;
as grounds where conciliation is, or is likely to be, unsuccessful;
but
(b) the Commission also indicates, in respect of the former ground, that
it considers, on the balance of probabilities, that the applicant’s claim
in respect of the ground is likely to succeed;
17 After subsection
170CFA(2)
Insert:
(2A) If:
(a) in a certificate given under subsection 170CF(2), the Commission
identifies only:
(i) the ground referred to in paragraph 170CE(1)(a); and
(ii) the ground of an alleged contravention of
section 170CM;
as grounds where conciliation is, or is likely to be, unsuccessful;
and
(b) the Commission subsequently concludes, in a certificate given under
subsection 170CF(4), that the applicant’s claim in respect of the former
ground has a substantial prospect of being unsuccessful;
the applicant must elect either to begin proceedings in a court of
competent jurisdiction for an order under section 170CR in respect of the
alleged contravention of section 170CM or not to begin such
proceedings.
18 Subsection 170CFA(3)
Omit all the words before “the applicant”,
substitute:
(3) If:
(a) in a certificate given under subsection 170CF(2), the Commission
identifies only:
(i) the ground referred to in paragraph 170CE(1)(a); and
(ii) the ground of an alleged contravention of one or more of
sections 170CK, 170CL and 170CN;
as grounds where conciliation is, or is likely to be, unsuccessful;
but
(b) the Commission also indicates, in respect of the former ground, that
the Commission considers, on the balance of probabilities, that the
applicant’s claim in respect of the ground is likely to succeed;
19 After subsection
170CFA(3)
Insert:
(3A) If:
(a) in a certificate given under subsection 170CF(2), the Commission
identifies only:
(i) the ground referred to in paragraph 170CE(1)(a); and
(ii) a ground or grounds of an alleged contravention of one or more of
sections 170CK, 170CL and 170CN;
as grounds where conciliation is, or is likely to be, unsuccessful;
and
(b) the Commission subsequently concludes, in a certificate given under
subsection 170CF(4), that the applicant’s claim in respect of the former
ground, has a substantial prospect of being unsuccessful;
the applicant must elect to begin proceedings in the Court for an order
under section 170CR in respect of the alleged contravention, or of any one
or more of the alleged contraventions, or not to begin such
proceedings.
20 Subsection 170CFA(5)
Omit all the words before “the applicant”,
substitute:
(5) If:
(a) in a certificate given under subsection 170CF(2), the Commission
identifies:
(i) the ground referred to in paragraph 170CE(1)(a); and
(ii) the ground of an alleged contravention of section 170CM;
and
(iii) a ground or grounds of an alleged contravention of one or more of
sections 170CK, 170CL and 170CN;
as grounds where conciliation is, or is likely to be, unsuccessful;
but
(b) the Commission also indicates, in respect of the ground referred to in
paragraph 170CE(1)(a), that the Commission considers, on the balance of
probabilities, that the applicant’s claim in respect of the ground is
likely to succeed;
21 After subsection
170CFA(5)
Insert:
(5A) If:
(a) in a certificate given under subsection 170CF(2), the Commission
identifies:
(i) the ground referred to in paragraph 170CE(1)(a); and
(ii) the ground of an alleged contravention of section 170CM;
and
(iii) a ground or grounds of an alleged contravention of one or more of
sections 170CK, 170CL and 170CN;
as grounds where conciliation is, or is likely to be, unsuccessful;
and
(b) the Commission subsequently concludes, in a certificate given under
subsection 170CF(4), that the applicant’s claim in respect of the ground
referred to in paragraph 170CE(1)(a) has a substantial prospect of being
unsuccessful;
the applicant must elect to do either or both of the things permitted in
subsection (4) or to do none of those things.
22 Subsections 170CFA(6) and
(7)
Omit “(3), (4) or (5)” (wherever occurring), substitute
“(2A), (3), (3A), (4), (5) or (5A)”.
23 Subsection 170CFA(7)
Omit all the words from and including “for all
purposes”.
24 Subsection 170CFA(8)
Repeal the subsection.
25 Paragraph 170CG(3)(a)
Omit “or to the operational requirements of the employer’s
undertaking, establishment or service”.
26 After paragraph
170CG(3)(d)
Insert:
(da) 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
27 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 to be taken to be
harsh, unjust or unreasonable, unless the circumstances are
exceptional.
28 Subsection 170CH(7)
Omit “Subject to subsection (8)”, substitute
“Subject to subsections (7A) and (8)”.
29 After subsection
170CH(7)
Insert:
(7A) Any amount ordered by the Commission under subsection (6) to be
paid to an employee in lieu of reinstatement may not 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.
30 After section 170CI
Insert:
Representatives other than legal practitioners
(1) In a proceeding before the Commission, the Commission must ask a
representative appearing on behalf of a party to the proceeding if the
representative has been retained by the party under a costs arrangement as to
the representative’s costs.
Legal practitioners
(2) In a proceeding before the Commission, the Commission must ask a legal
practitioner appearing on behalf of a party to the proceeding if the
practitioner has been retained by the party under a contingency fee agreement as
to the practitioner’s costs.
Obligation of representative or practitioner
(3) If the representative or legal practitioner has been retained under a
costs arrangement or contingency fee agreement (as the case may be), the
representative or practitioner must inform the Commission of that
fact.
No effect on law relating to legal professional privilege
(4) This section does not affect the law relating to legal professional
privilege.
Definitions in this section
(5) In this section:
costs arrangement means an arrangement between people under
which:
(a) a person agrees to provide representation for another person before
the Commission; and
(b) the payment of all, or a substantial proportion, of the
representative’s costs is contingent on the outcome of the proceeding
before the Commission in which the representative represents the
person.
proceeding before the Commission means one of the following
proceedings in respect of an application under section 170CE by an employee
whose employment has been terminated on the ground, or on grounds that include
the ground, that the termination was harsh, unjust or unreasonable:
(a) a proceeding for dismissal of the application on the ground that the
application is outside jurisdiction;
(b) conciliation proceedings under section 170CF;
(c) arbitration proceedings under section 170CG.
representative means a person, other than a legal
practitioner, appearing on behalf of a party to a proceeding before the
Commission.
If an applicant in a proceeding relating to an application under
section 170CE fails to attend the proceeding, the Commission, after giving
the applicant a reasonable opportunity to be heard, may dismiss the application
under section 170CE.
31 Subsections 170CJ(2), (3), (4) and
(5)
Repeal the subsections, substitute:
(2) If the Commission is satisfied:
(a) that a person (first party):
(i) made an application under section 170CE; or
(ii) began a proceeding relating to such an application; and
(b) the first party did so in circumstances where it should have been
reasonably apparent to the first party that there was not a substantial prospect
of success in relation to the application or proceeding;
the Commission may, on an application under this section by the other party
to the application or proceeding, make an order for costs against the first
party.
(3) If the Commission is satisfied that a party (first
party) to a proceeding relating to an application under
section 170CE has acted unreasonably in failing:
(a) to discontinue the proceeding; or
(b) to agree to terms of settlement that could lead to the discontinuance
of the application;
the Commission may, on an application under this section by the other party
to the proceeding, make an order for costs against the first party.
(4) If the Commission is satisfied:
(a) that a party (first party) to a proceeding relating to
an application made under section 170CE caused costs to be incurred by the
other party to the proceeding; and
(b) that the first party caused the costs to be incurred because of the
first party’s unreasonable act or omission in connection with the conduct
of the proceeding;
the Commission may, on an application by the other party under this
section, make an order for costs against the first party.
(5) An application for an order for costs under this section must be made
within 14 days after the determination, discontinuance, settlement or dismissal
of the application under section 170CE or proceeding relating to an
application under section 170CE (as the case may be).
(5A) A schedule of costs may be prescribed in relation to items of
expenditure likely to be incurred in respect of:
(a) an application to the Commission under section 170CE;
and
(b) a proceeding in respect of an application under
section 170CE.
32 Subsection 170CJ(7)
Omit “subsection (5)”, substitute
“subsection (5A)”.
33 At the end of
section 170CJ
Add:
(8) For the purposes of this section, the following proceedings are
examples of proceedings relating to an application under
section 170CE in respect of which the Commission may make an order
for costs:
(a) a “pre-conciliation” conference that parties are directed
to attend by the Commission under paragraph 111(1)(t);
(b) a proceeding for dismissal of an application under section 170CE
on the ground that the application is outside jurisdiction;
(c) conciliation proceedings under section 170CF;
(d) arbitration proceedings under section 170CG;
(e) an appeal to the Full Bench from an order of the Commission under
section 170CH or a costs order under section 170CJ;
(f) a proceeding concerning an application for costs by one party in
respect of another party’s application for costs.
This list is not an exhaustive list.
34 After section 170CJ
Insert:
(1) The Commission may order an applicant under section 170CE to give
security for the payment of costs that may be awarded against the
applicant.
(2) The Commission may make an order under subsection (1) only in
exceptional circumstances.
(3) The security may be of such amount, and given at such time and in such
manner and form, as the Commission directs.
(4) The Commission may reduce or increase the amount of security ordered
to be given and may vary the time at which, or manner or form in which, the
security is to be given.
(5) If security, or further security, is not given in accordance with an
order under this section, the Commission may order that the proceeding be
dismissed.
35 Subsection 170CL(2)
Omit “must give to the Commonwealth Employment Service a written
notice of the intended terminations that sets out”, substitute “must
give to the body (if any) prescribed by regulations made for the purposes of
this subsection or, failing the prescription of such a body, to the Secretary of
the Department, a written notice of the intended terminations, in a form
prescribed by the regulations, that sets out”.
36 Subsection 170CP(7)
Repeal the subsection, substitute:
(7) The Court may accept an application that is lodged out of time only if
the Court is satisfied that it would be equitable to accept the
application.
(8) In determining whether it would be equitable to accept an application
lodged out of time, the Court is to have regard to the following
matters:
(a) whether there is an acceptable explanation for the delay in lodging
the application;
(b) whether the applicant took action of any kind to contest the
termination of his or her employment;
(c) whether the acceptance of the application would prejudice the
respondent;
(d) the merits of the substantive application;
(e) considerations of fairness between the applicant and persons in a like
position so far as the acceptance or rejection of the application is
concerned.
Note: The criteria set out above are derived from principles
employed by the Industrial Relations Court of Australia in exercising a
discretion to accept an application out of time in Brodie-Hanns v MTV
Publishing Ltd (1995) 67 IR 298.
37 Paragraph 170CR(1)(c)
Omit “subject to subsection (2)”, substitute
“subject to subsections (1A) and (2)”.
38 After subsection
170CR(1)
Insert:
(1A) Any amount of compensation ordered by the Court under
paragraph (1)(c) or (d) to be paid to an employee may not 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.
39 After section 170HB
Insert:
An application must not be made under section 170CE in relation to a
termination of employment of an employee where a previous application under
section 170CE was made in respect of the same termination.
40 At the end of Division 3 of
Part VIA
Add:
In this Subdivision:
adviser means:
(a) a person or body engaged for fee or reward to represent an applicant
in an unfair termination application, including a person or body so engaged
under a contingency fee agreement, or under a costs arrangement within the
meaning of subsection 170CIA(5); or
(b) a person who is an employee, official or agent of a registered
organisation of employees and who represents an applicant in an unfair
termination application in that capacity.
encourage, in relation to a course of action, means the
promotion of that course of action as distinct from a failure to dissuade from
that course of action.
unfair termination application means an application for
relief under section 170CE by an employee whose employment has been
terminated, on the ground, or on grounds that include the ground, that the
termination was harsh, unjust or unreasonable.
An adviser must not encourage an employee to make or pursue an unfair
termination application if, on the facts that have been disclosed or that ought
reasonably to have been apparent to the adviser, the adviser should have been,
or should have become, aware that there was no reasonable prospect of success in
respect of the application.
(1) An application may be made to the Court for an order under
section 170HI in respect of a contravention of
section 170HE.
(2) The application may be made by:
(a) the applicant in respect of an unfair termination application;
or
(b) a respondent to such an application; or
(c) the Minister.
(3) An application under this section for an order in respect of a
contravention of section 170HE may only be made after the relevant unfair
termination application has been determined, dismissed or
discontinued.
(4) Nothing in this Subdivision implies that, for the purposes of an
application under this section, the law relating to legal professional privilege
is abrogated, or in any way affected.
In any proceedings for an order in respect of a contravention of
section 170HE by an adviser, if the applicant for the order makes out a
prima facie case that the course of action followed by the adviser contravened
that section, the course of action will be taken to have contravened that
section unless the adviser can establish to the contrary on the balance of
probabilities.
In any proceeding for an order in respect of a contravention of
section 170HE in respect of an unfair termination application, the Court
must not determine that there was no reasonable prospect of success in respect
of the application unless it has had regard:
(a) to the outcome of the application before the Commission; and
(b) to the contents of any certificate issued by the Commission under
subsection 170CF(2) and, where applicable, subsection (4).
In respect of contraventions of section 170HE, the Court may, if the
Court considers it appropriate in all the circumstances of the case, make an
order imposing on the adviser who contravened that section a penalty:
(a) if the adviser is a body corporate—of not more than $10,000;
or
(b) if the adviser is not a body corporate—of not more than
$2,000.
Part 2—Application
and saving provisions
41 Application of items 1, 2 and
30
The amendments of the Workplace Relations Act 1996 made by
items 1, 2 and 30 apply only in relation to applications under
section 170CE of that Act made on or after the date on which those items
commence.
42 Application of items 4 and
34
The amendments of the Workplace Relations Act 1996 made by
items 4 and 34 apply only in relation to applications under
section 170CE of that Act made on or after the date on which that item
commences.
43 Application of
item 11
The amendment of the Workplace Relations Act 1996 made by
item 11 applies only in relation to applications under section 170CE
of that Act made on or after the date on which that item commences.
44 Saving provision concerning certain motions
for dismissal
If, under the rules of the Commission as in force before the date of
commencement of item 12, a respondent has elected to have jurisdictional
issues in relation to an application under section 170CE of the
Workplace Relations Act 1996 determined but those issues have not been
determined before that date, that election is to be treated, on and after that
date, as if it were a motion for dismissal of the application made under
section 170CEA of the Workplace Relations Act 1996 as amended by
that item.
45 Application provision concerning certificates
given under subsection 170CF(2) of the Workplace Relations Act
1996
Subsection 170CF(2) of the Workplace Relations Act 1996, as amended
by item 13, applies only in relation to applications under
section 170CE of that Act made on or after the date on which that item
commences.
46 Application of items 25 and
27
The amendments of the Workplace Relations Act 1996 made by
items 25 and 27 apply only in relation to applications under
section 170CE of that Act made on or after the date on which those items
commence.
47 Application of
item 26
The amendment of the Workplace Relations Act 1996 made by
item 26 applies only in relation to applications under section 170CE
of that Act made on or after the date on which that item commences.
48 Application of items 31, 32 and
33
The amendments of the Workplace Relations Act 1996 made by
items 31, 32 and 33 apply only in relation to a proceeding relating to an
application under section 170CE of that Act made on or after the date on
which those items commence.
49 Application of
item 36
The amendment of the Workplace Relations Act 1996 made by
item 36 applies only in relation to applications under section 170CP
of that Act made on or after the date on which that item commences.
50 Application provision concerning
unmeritorious or speculative proceedings
Subdivision G of Division 3 of Part VIA of the Workplace
Relations Act 1996, as inserted by item 40, applies only in relation to
proceedings brought under that Subdivision in relation to applications under
section 170CE of that Act made on or after the date on which that item
commences.