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WORKPLACE RELATIONS AMENDMENT (TERMINATION OF EMPLOYMENT) ACT 2001 - SCHEDULE 1

- Termination of employment

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 2001 or the Workplace Relations Amendment (Secret Ballots for Protected Action) Act 2001 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.

7 Subsection 170CD(1) (definition of Federal award employee)

Omit "or an AWA", substitute ", an AWA or an old IR agreement".

9 After subsection 170CD(1)

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 or duties of the demoted employee; and
(b)
the demoted employee remains employed with the employer who effected the demotion.

9A Subsection 170CE(1)

Omit "subsection (5)", substitute "subsections (5) and (5A)".

10A After subsection 170CE(5)

Insert:

(5A)
An application under subsection (1) must not be made on the ground referred to in paragraph (1)(a), or on grounds that include that ground, unless the employee concerned had completed the qualifying period of employment with the employer at the earlier of the following times:

(a)
the time when the employer gave the employee the notice of termination;
(b)
the time when the employer terminated the employee's employment.
(5B)
For the purposes of subsection (5A), the qualifying period of employment is:

(a)
3 months; or
(b)
a shorter period, or no period, determined by written agreement between the employee and employer before the commencement of the employment; or
(c)
a longer period determined by written agreement between the employee and employer before the commencement of the employment, being a reasonable period having regard to the nature and circumstances of the employment.

11 At the end of subsection 170CE(7)

Add ", or within such period as the Commission allows on an application made during or after those 21 days.".

11A At the end of subsection 170CE(7A)

Add ", or within such period as the Commission allows on an application made during or after those 21 days.".

Note: In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988 .

11B Subsection 170CE(8)

Repeal the subsection.

12 After section 170CE

Insert:

170CEA Motions for dismissal of application for want of jurisdiction

(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 At the end of subsection 170CF(2)

Add:

; and (d) if the Commission considers, having regard to all the materials before the Commission, that the application has no reasonable prospect of success, it must advise the parties accordingly.

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 that the applicant's claim in respect of the ground so referred has no reasonable prospect of success;

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 no reasonable prospect of success 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 At the end of subsection 170CFA(1)

Add:

Note: If a certificate under subsection 170CF(2) identifies both the ground in paragraph 170CE(1)(a) and a ground or grounds of an alleged contravention of Subdivision C, and the Commission has issued a certificate under subsection 170CF(4) in relation to the ground in paragraph 170CE(1)(a), an applicant must make an election as if the certificate under subsection 170CF(2) identified only the ground or grounds in Subdivision C.

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
(db)
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; and

30 After section 170CI

Insert:

170CIA Representatives to disclose contingency fee agreements

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.

170CIB Commission may dismiss application if applicant fails to attend

If an applicant in a proceeding relating to an application under section 170CE fails to attend the proceeding, the Commission, after giving the applicant reasonable notice and a reasonable opportunity to be heard, may dismiss the application under section 170CE.

31 Subsections 170CJ(1), (2), (3), (4) and (5)

Repeal the subsections, substitute:

(1)
If the Commission is satisfied:

(a)
that a person ( first party ):
(i)
made an application under section 170CE; or
(ii)
began proceedings relating to an application; and
(b)
the first party did so in circumstances where it should have been reasonably apparent to the first party that he or she had no reasonable prospect of success in relation to the application or proceeding;

the Commission may, on application under this section by the other party to the application or proceeding, make an order for costs against the first party.

(2)
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.

(3)
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.

(4)
In making a decision under this section, the Commission may have regard to any certificate issued or advice given under section 170CF and whether a party pursued a course of action contrary to any such certificate or advice.

(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:

(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.

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 At the end of subsection 170CP(6)

Add ", or within such period as a court allows on an application made during or after those 14 days.".

Note: In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988 .

36A Subsection 170CP(7)

Repeal the subsection.

39 After section 170HB

Insert:

170HBA No second applications under section 170CE concerning same termination to be made

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 unless the second application corrects an error in the previous application, or the Commission considers that it would be fair to accept the second application.

40 At the end of Division 3 of Part VIA

Add:

Subdivision G—Unmeritorious or speculative proceedings
170HD Definitions

In this Subdivision:

"adviser" means:

(a)
a person or body engaged for fee or reward to represent an applicant or a respondent 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 or a respondent 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.

170HE Advisers not to encourage applicants to make, or to pursue, certain applications

(1)
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.

(2)
An adviser must not encourage an employer to continue to oppose 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 the respondent defending the action.

170HF Applications to the Court

(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; or
(d)
the Registrar; or
(e)
an organisation of employees or employers that represented a party in proceedings at first instance in respect of the unfair termination application.
(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.

170HH Evidentiary matters

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 or no reasonable prospect of the respondent defending the action 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).

170HI Order that the Court may make

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 $ 00.

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.

42A Application of items 9A and 10A

The amendments of the Workplace Relations Act 1996 made by items 9A and 10A apply only in relation to applications under section 170CE of that Act where the employment to which the application relates commenced on or after the date on which those items commence.

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.

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.



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