Commonwealth Consolidated Acts Commonwealth Consolidated ActsPart 1—Amendments
1 At the end of section 5
Add:
(8) If a law of a State (the relevant State law ) provides that a provision of this Act applies (subject to any necessary modifications to section 170CB) as a law of that State for the purpose of enabling the Commission to perform functions or exercise powers with respect to the termination of employment of employees who are, or who were before the termination, Federal award employees as defined in section 170CD employed in that State:
(a) nothing in this Act affects the operation of the relevant State law; and
(b) the Commission may perform those functions or exercise those powers.
(9) If a law of a State (the relevant State law ) also provides that a provision of this Act applies (subject to any necessary modifications) as a law of that State for the purpose of enabling the Court to perform functions or exercise powers with respect to the termination of employment of employees who are, or who were before the termination, Federal award employees as defined in section 170CD employed in that State in connection with orders of the Commission to the extent that those orders are made in the exercise of the provisions of this Act as applied by the relevant State law, then:
(a) the Court may perform those functions or exercise those powers in connection with those orders; and
(b) nothing in this Act affects the operation of the relevant State law.
2 Section 152
Omit “Where a State law, or an order, award, decision or determination of a State industrial authority,”, substitute “Subject to this section, if a State law or a State award”.
3 At the end of section 152
Add:
(1A) If a State law or a State award makes provision in respect of the termination of an employee’s employment, any provision in a Federal award that also makes provision in respect of the termination of employment of the employee is not to be taken to show an intention to cover the field to the exclusion of that State law or State award.
Note: The heading to section 152 is altered by omitting “, awards etc” and substituting “ and State awards ”.
4 Subsection 153(1)
Omit “or an order, award, decision or determination of a State industrial authority”, substitute “or a State award”.
Note: The heading to section 153 is altered by omitting “ orders, awards etc ” and substituting “ laws and State awards ”.
5 Subdivisions A, B, C and CA of Division 3 of Part VIA
Repeal the Subdivisions, substitute:
Subdivision A—Object, application and definitions
(1) The principal object of this Division is:
(a) to establish procedures for conciliation in relation to certain matters relating to the termination or proposed termination of an employee’s employment in certain circumstances; and
(b) to provide, if the conciliation process is unsuccessful, for recourse to arbitration or to a court depending on the grounds on which the conciliation was sought; and
(c) to provide for remedies appropriate to a case where, on arbitration, a termination is found to be harsh, unjust or unreasonable; and
(d) to provide for sanctions where, on recourse to a court, a termination or proposed termination is found to be unlawful; and
(e) by those procedures, remedies and sanctions, and by orders made in the circumstances set out in Subdivisions D and E, to assist in giving effect to the Termination of Employment Convention.
(2) The procedures and remedies referred to in paragraphs (1)(a) and (b), and the manner of deciding on and working out such remedies, are intended to ensure that, in the consideration of an application in respect of a termination of employment, a “fair go all round” is accorded to both the employer and employee concerned.
Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.
(1) Subdivision B applies, in so far as it relates to an application to the Commission for relief in relation to the termination of employment of an employee on the ground that that termination was harsh, unjust or unreasonable, if the employee concerned was, before the termination:
(a) a Commonwealth public sector employee; or
(b) a Territory employee; or
(c) a Federal award employee who was employed by a constitutional corporation; or
(d) a Federal award employee who was a waterside worker, maritime employee or flight crew officer, employed in the course of, or in relation to, trade or commerce between Australia and a place outside Australia, between the States, within a Territory, between a State and a Territory, or between 2 Territories.
(2) Subdivision B applies, in so far as it relates to an application to the Commission for relief in relation to the termination of employment of an employee on the ground of a contravention of all or any of sections 170CK, 170CL, 170CM and 170CN, if the employee concerned is an employee in relation to whose termination of employment Subdivision C applies in accordance with this section.
(3) Subdivisions C, D and E apply in relation to the termination of employment of an employee.
(4) Without prejudice to their effect apart from this subsection, Subdivisions C, D and E also apply in relation to the termination of employment of:
(a) a Commonwealth public sector employee; or
(b) a Territory employee; or
(c) an employee who was employed by a constitutional corporation; or
(d) an employee who was a waterside worker, maritime employee or flight crew officer, employed in the course of, or in relation to, trade or commerce between Australia and a place outside Australia, between the States, within a Territory, between a State and a Territory, or between 2 Territories.
(5) Without prejudice to their effect apart from this subsection, Subdivisions C, D and E also apply in relation to the termination of employment of an employee for the purpose of assisting in giving effect to the Termination of Employment Convention.
(6) Without prejudice to its effect apart from this subsection, section 170CK also applies in relation to the termination of employment of an employee for the purpose of giving effect to the conventions referred to in that section.
170CC Regulations may exclude employees
(1) The regulations may exclude from the operation of specified provisions of this Division specified classes of employees included in any of the following classes:
(a) employees engaged under a contract of employment for a specified period of time or a specified task;
(b) employees serving a period of probation or qualifying period;
(c) employees engaged on a casual basis for a short period;
(d) employees whose terms and conditions of employment are governed by special arrangements providing particular protection in respect of termination of employment either generally or in particular circumstances;
(e) employees in relation to whom the operation of the provisions causes or would cause substantial problems because of:
(i) their particular conditions of employment; or
(ii) the size or nature of the undertakings in which they are employed.
(2) Without limiting, by implication, the class of persons that may be prescribed for the purposes of paragraph (1)(e), the regulations may identify as a class of employees for the purposes of that paragraph employees not employed under award conditions and to whom subsection (3) or (4) applies.
(3) This subsection applies to an employee if:
(a) the employee’s remuneration immediately before the termination of employment was not wholly or partly determined on the basis of commission or piece rates; and
(b) the rate of remuneration applicable to the employee immediately before the termination exceeds a rate specified, or worked out in a manner specified, in the regulations (the specified rate ).
(4) This subsection applies to an employee if:
(a) the employee’s remuneration immediately before the termination of employment was wholly or partly determined on the basis of commission or piece rates; and
(b) in accordance with the regulations, the rate of remuneration that is taken to be applicable to the employee immediately before the termination exceeds the specified rate.
(1) In this Division:
"Commonwealth public sector employee" means a person in employment:
(a) as an officer or employee of the Australian Public Service; or
(b) by or in the service of a Commonwealth authority; or
(c) by authority of a law of the Commonwealth.
Note: Commonwealth authority is defined in subsection 4(1).
"Federal award employee" means an employee any of whose terms and conditions of employment are governed by an award, a certified agreement or an AWA.
"termination or termination of employment" means termination of employment at the initiative of the employer.
"Territory employee" means any person employed in a Territory other than Norfolk Island.
(2) An expression used in Subdivision C, D or E of this Division has the same meaning as in the Termination of Employment Convention.
(3) For the purposes of this Division, an employee is taken to be employed under award conditions if both wages and conditions of employment of the employee are regulated by awards, certified agreements or AWAs, that bind the employer of the employee.
Subdivision B—Application to Commission for relief in respect of termination of employment
170CE Application to Commission to deal with termination under this Subdivision
(1) Subject to subsection (5), an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment:
(a) on the ground that the termination was harsh, unjust or unreasonable; or
(b) on the ground of an alleged contravention of section 170CK, 170CL, 170CM or 170CN; or
(c) on any combination of grounds in paragraph (b) or on a ground or grounds in paragraph (b) and the ground in paragraph (a).
(2) Subject to subsection (6), an employee whose employment is proposed to be terminated by the employer may apply to the Commission for relief on the ground of an alleged contravention of section 170CL.
(3) Subject to subsection (6), if:
(a) an employee’s employment has been terminated by the employer; and
(b) a trade union’s rules entitle it to represent the industrial interests of the employee;
the union may, on behalf of the employee, apply to the Commission for relief on the ground or grounds of an alleged contravention of one or more of sections 170CK, 170CM and 170CN.
(4) Subject to subsection (6), if an employee’s employment has been terminated, or is proposed to be terminated, by the employer:
(a) an inspector; or
(b) a trade union:
(i) whose members include the employee; and
(ii) whose rules entitle it to represent the industrial interests of the employee; or
(c) an officer or employee of such a union—if the union’s rules authorise the officer or employee to act on the union’s behalf;
may apply to the Commission for relief on the ground of an alleged contravention of section 170CL.
(5) An application under subsection (1) may not be made:
(a) on the ground referred to in paragraph (1)(a) or on grounds that include that ground—unless, under subsection 170CB(1), Subdivision B applies to that application; or
(b) on a ground referred to in paragraph (1)(b)—unless Subdivision C applies to that application.
(6) An application under subsection (2), (3) or (4) may not be made on a ground referred to in that subsection unless Subdivision C applies to that application.
(7) An application under subsection (1) must be lodged within 21 days after the day on which the termination took effect.
(8) The Commission may accept an application that is lodged out of time if the Commission considers that it would be unfair not to do so.
(9) An application under subsection (1) may be discontinued by the employee in accordance with rules made under section 48. The employee may do so whether or not the employer and the employee have agreed to settle the matter.
(1) When an application is lodged with the Commission, the Commission must attempt to settle the matter to which the application relates by conciliation.
(2) If the Commission is satisfied that all reasonable attempts to settle the matter by conciliation are, or are likely to be, unsuccessful so far as concerns at least one ground of the application, the Commission:
(a) must issue a certificate in writing stating that it is so satisfied in respect of that ground or each such ground; and
(b) must indicate to the parties the Commission’s assessment of the merits of the application in so far as it relates to that ground or to each such ground; and
(c) if the Commission thinks fit, may recommend that the applicant elect not to pursue a ground or grounds of the application (whether or not also recommending other means of resolving the matter).
170CFA Elections to proceed to arbitration or to begin court proceedings
(1) If the certificate given by the Commission under subsection 170CF(2) identifies only the ground referred to in paragraph 170CE(1)(a) as a ground where conciliation is, or is likely to be, unsuccessful, the applicant must elect either to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable or not to proceed.
(2) If the certificate given by the Commission under subsection 170CF(2) identifies only:
(a) the ground referred to in paragraph 170CE(1)(a); and
(b) the ground of an alleged contravention of section 170CM;
as grounds where conciliation is, or is likely to be, unsuccessful, the applicant must elect to do either, both, or neither of the following:
(c) to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable;
(d) to begin proceedings in a court of competent jurisdiction for an order under section 170CR in respect of the alleged contravention of section 170CM.
(3) If the certificate given by the Commission under subsection 170CF(2) identifies:
(a) the ground referred to in paragraph 170CE(1)(a); and
(b) 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, the applicant must elect to do either or neither of the following:
(c) to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable;
(d) 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.
(4) If the certificate given by the Commission under subsection 170CF(2) identifies only a ground or grounds of an alleged contravention of one or more of sections 170CK, 170CL, 170CM and 170CN as the ground or grounds where conciliation is, or is likely to be, unsuccessful, the applicant must elect to do either, both or neither of the following:
(a) so far as concerns an alleged contravention of a section or sections other than section 170CM—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;
(b) so far as concerns an alleged contravention of section 170CM—to begin proceedings in a court of competent jurisdiction for an order under section 170CR in respect of the alleged contravention.
(5) If the certificate given by the Commission under subsection 170CF(2) identifies:
(a) the ground referred to in paragraph 170CE(1)(a); and
(b) the ground of an alleged contravention of section 170CM; and
(c) 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, the applicant must elect:
(d) to do either or both of the things permitted in subsection (2); or
(e) to do either or both of the things permitted in subsection (4); or
(f) to do none of those things.
(6) An election under subsection (1), (2), (3), (4) or (5) must:
(a) be made in writing; and
(b) be lodged with the Commission not later than 7 days after the day of issue of the certificate by the Commission under subsection 170CF(2) in relation to the application.
(7) If an applicant fails to lodge with the Commission an election under subsection (1), (2), (3), (4) or (5) within the period required under subsection (6), the application concerned is taken to have been discontinued by the applicant at the end of that period for all purposes other than the making of an election out of time in accordance with subsection (8).
(8) The Commission may accept an election that is lodged out of time if the Commission considers that it would be unfair not to do so, and, if the Commission accepts such an election, the original application is taken not to have been discontinued in spite of subsection (7).
(1) If:
(a) the Commission has issued a certificate under subsection 170CF(2) regarding conciliation of an application relating to a termination of employment; and
(b) the applicant has made an election under subsection 170CFA(1), (2), (3) or (5) to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable;
the Commission may so proceed to arbitrate the matter.
(2) Neither the making of an election under subsection 170CFA(1), (2), (3) or (5) to proceed to arbitration nor the commencement of that arbitration prevents further conciliation of the matter being attempted, or the parties from settling the matter, at any time before an order is made under section 170CH.
(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:
(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer’s undertaking, establishment or service; and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
(d) if the termination related to unsatisfactory performance by the employee—whether the employee had been warned about that unsatisfactory performance before the termination; and
(e) any other matters that the Commission considers relevant.
(1) Subject to this section, the Commission may, on completion of the arbitration, make an order that provides for a remedy of a kind referred to in subsection (3), (4) or (6) if it has determined that the termination was harsh, unjust or unreasonable.
(2) The Commission must not make an order under subsection (1) unless the Commission is satisfied, having regard to all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s undertaking, establishment or service; and
(b) the length of the employee’s service with the employer; and
(c) the remuneration that the employee would have received, or would have been likely to receive, if the employee’s employment had not been terminated; and
(d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and
(e) any other matter that the Commission considers relevant;
that the remedy ordered is appropriate.
(3) If the Commission considers it appropriate, the Commission may make an order requiring the employer to reinstate the employee by:
(a) reappointing the employee to the position in which the employee was employed immediately before the termination.
(b) appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination.
(4) If the Commission makes an order under subsection (3) and considers it appropriate to do so, the Commission may also make:
(a) any order that the Commission thinks appropriate to maintain the continuity of the employee’s employment; and
(b) subject to subsection (5)—any order that the Commission thinks appropriate to cause the employer to pay to the employee an amount in respect of the remuneration lost, or likely to have been lost, by the employee because of the termination.
(5) If, as a result of an application under section 170CP, a court has awarded an amount of damages for a failure to give notice of a termination as required by section 170CM, any amount ordered to be paid by the Commission under paragraph (4)(b) in respect of the termination is to be reduced accordingly.
(6) If the Commission thinks that the reinstatement of the employee is inappropriate, the Commission may, if the Commission considers it appropriate in all the circumstances of the case, make an order requiring the employer to pay the employee an amount ordered by the Commission in lieu of reinstatement.
(7) Subject to subsection (8), in determining an amount for the purposes of an order under subsection (6), the Commission must have regard to all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s undertaking, establishment or service; and
(b) the length of the employee’s service with the employer; and
(c) the remuneration that the employee would have received, or would have been likely to receive, if the employee’s employment had not been terminated; and
(d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and
(e) any other matter that the Commission considers relevant.
(8) In fixing an amount under subsection (6) for an employee who was employed under award conditions immediately before the termination, the Commission must not fix an amount that exceeds the total of the following amounts:
(a) the total amount of remuneration received (other than remuneration received for any period of leave without full pay) by the employee for any period of employment with the employer during the period of 6 months immediately before the termination; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
(9) In fixing an amount under subsection (6) for an employee who was not employed under award conditions immediately before the termination, the Commission must not fix an amount that exceeds:
(a) the total of the amounts determined under subsection (8) if the employee were an employee covered by the subsection; or
(b) the amount of $32,000, as indexed from time to time in accordance with a formula prescribed by the regulations;
whichever is the lower amount.
(10) For the avoidance of doubt, an order by the Commission under paragraph (4)(b) or under subsection (6) may permit the employer concerned to pay the amount required in instalments specified in the order.
170CI Orders made on arbitration are binding
Subject to any right of appeal to a Full Bench of the Commission, an order made by the Commission under section 170CH is final and binding between the parties.
170CJ Commission may order payment of costs
(1) If the Commission is satisfied that a person or organisation made an application under section 170CE vexatiously or without reasonable cause, the Commission may, on an application by the employer under this section, make an order for costs against the person or organisation.
(2) If:
(a) the Commission has begun arbitrating a matter the subject of an application under section 170CE; and
(b) the Commission is satisfied that a party to the proceeding has acted unreasonably in failing to discontinue the matter before the Commission or to agree to terms of settlement that could lead to the discontinuance of the matter before the conclusion of the arbitration;
the Commission may, on an application under this section by the other party to the proceeding, make an order for costs against the first‑mentioned party.
(3) If:
(a) a person or organisation has made an application under section 170CE; and
(b) the person or organisation elects, under subsection 170CFA(1), (2), (3) or (5) to proceed to arbitration; and
(c) after the making of that election the person or organisation discontinues the matter before the Commission;
the Commission may, on an application made under this section by the employer, make an order for costs against the person or organisation if the Commission is satisfied that the person or organisation has acted unreasonably in failing to discontinue the application at an earlier time.
(4) An application for an order for costs under this section must be made within 14 days after the determination or discontinuance of the proceedings before the Commission arising under an application under section 170CE.
(5) A schedule of costs may be prescribed in relation to items of expenditure likely to be incurred in respect of an application to the Commission under section 170CE.
(6) Without limiting, by implication, the generality of the items of expenditure for which the schedule may provide, those items may include:
(a) legal and professional costs and disbursements; and
(b) expenses arising from the representation of a party by a person or organisation other than on a legal professional basis; and
(c) expenses of witnesses.
(7) If a schedule of costs is prescribed for the purposes of subsection (5), then, in awarding costs under this section, the Commission:
(a) is not limited to the items of expenditure appearing in the schedule; but
(b) if an item does appear in the schedule—must not award costs in respect of that item at a rate or of an amount in excess of the rate or amount appearing in the schedule.
Subdivision C—Unlawful termination of employment by employer
170CK Employment not to be terminated on certain grounds
(1) In addition to the principal object of this Division set out in section 170CA, the additional object of this section is to make provisions that are intended to assist in giving effect to:
(a) the Convention concerning Discrimination in respect of Employment and Occupation, a copy of the English text of which is set out in Schedule 1 to the Human Rights and Equal Opportunity Commission Act 1986 ; and
(b) the Family Responsibilities Convention.
(2) Except as provided by subsection (3) or (4), an employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
(a) temporary absence from work because of illness or injury within the meaning of the regulations;
(b) trade union membership or participation in trade union activities outside working hours or, with the employer’s consent, during working hours;
(c) non‑membership of a trade union;
(d) seeking office as, or acting or having acted in the capacity of, a representative of employees;
(e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
(f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
(g) refusing to negotiate in connection with, make, sign, extend, vary or terminate an AWA;
(h) absence from work during maternity leave or other parental leave.
(3) Subsection (2) does not prevent a matter referred to in paragraph (2)(f) from being a reason for terminating employment if the reason is based on the inherent requirements of the particular position concerned.
(4) Subsection (2) does not prevent a matter referred to in paragraph (2)(f) from being a reason for terminating a person’s employment as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the employer terminates the employment in good faith to avoid injury to the religious susceptibilities of adherents of that religion or creed.
170CL Employer to notify CES of proposed terminations in certain cases
(1) This section applies if an employer decides 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.
(2) As soon as practicable after so deciding and before terminating an employee’s employment because of the decision, the employer must give to the Commonwealth Employment Service a written notice of the intended terminations that sets out:
(a) the reasons for the terminations; and
(b) the number and categories of employees likely to be affected; and
(c) the time when, or the period over which, the employer intends to carry out the terminations.
(3) The employer must not terminate an employee’s employment pursuant to the decision unless the employer has complied with subsection (2).
170CM Employer to give notice of termination
(1) Subject to subsection (8), an employer must not terminate an employee’s employment unless:
(a) the employee has been given the required period of notice (see subsections (2) and (3)); or
(b) the employee has been paid the required amount of compensation instead of notice (see subsections (4) and (5)); or
(c) the employee is guilty of serious misconduct, that is, misconduct of such a nature that it would be unreasonable to require the employer to continue the employment of the employee concerned during the required period of notice (see subsection (7)).
(2) The required period of notice is to be worked out as follows:
(a) first work out the period of notice using the table at the end of this subsection; and
(b) then increase the period of notice by 1 week if the employee:
(i) is over 45 years old; and
(ii) has completed at least 2 years of continuous service with the employer.
Employee’s period of continuous service with the employer | Period of notice |
| Not more than 1 year | At least 1 week |
| More than 1 year but not more than 3 years | At least 2 weeks |
| More than 3 years but not more than 5 years | At least 3 weeks |
| More than 5 years | At least 4 weeks |
(3) For the purposes of subsection (2), the regulations may prescribe events or other matters that must be disregarded, or must in prescribed circumstances be disregarded, in ascertaining a period of continuous service.
(4) The required amount of compensation instead of notice must equal or exceed the total of all amounts that, if the employee’s employment had continued until the end of the required period of notice, the employer would have become liable to pay to the employee because of the employment continuing during that period.
(5) That total must be worked out on the basis of:
(a) the employee’s ordinary hours of work (even if they are not standard hours); and
(b) the amounts ordinarily payable to the employee in respect of those hours, including (for example) allowances, loading and penalties; and
(c) any other amounts payable under the employee’s contract of employment.
(6) The regulations may make provision for or in relation to amounts that are taken to be payable under a contract of employment for the purposes of paragraph (5)(c) in relation to an employee whose remuneration before the termination was determined wholly or partly on the basis of commission or piece rates.
(7) Without limiting the generality of the reference to serious misconduct in paragraph (1)(c), the regulations may identify:
(a) particular conduct; or
(b) conduct in particular circumstances;
that falls within that reference.
(8) The regulations may exclude from the operation of this section terminations of employment occurring in specified circumstances that relate to the succession, assignment or transmission of the business of the employer concerned.
170CN Employer not to contravene Commission order about employment termination
An employer must not terminate an employee’s employment in contravention of an order in force under section 170FA.
170CO Contravention of this Subdivision not an offence
A contravention of section 170CK,170CL, 170CM or 170CN is not an offence.
170CP Application to courts in relation to alleged contravention of section 170CK, 170CL, 170CM or 170CN
(1) Subject to subsection (5), an employee may apply under this section to the Court for an order under section 170CR in respect of an alleged contravention of one or more of sections 170CK, 170CL and 170CN by his or her employer.
(2) Subject to subsection (5), an employee may apply under this section to the Court or to a court of competent jurisdiction as defined in section 177A for an order under section 170CR in respect of an alleged contravention of section 170CM by his or her employer.
(3) Subject to subsection (5), a trade union that has made an application under section 170CE on behalf of an employee on the ground of an alleged contravention of one or more of sections 170CK, 170CM and 170CN may apply to a court under this section for an order under section 170CR in respect of that alleged contravention or each of those alleged contraventions.
(4) Subject to subsection (5), an inspector, a trade union, or a trade union officer or employee who has made an application under section 170CE in respect of an alleged contravention of section 170CL may apply to the Court under this section for an order under section 170CR in respect of that alleged contravention.
(5) An application under subsection (1), (2), (3) or (4) in respect of an alleged contravention of section 170CK, 170CL, 170CM or 170CN may not be made to a court unless the applicant:
(a) has received a certificate under subsection 170CF(2) regarding conciliation of an application made wholly or partly on the ground of the alleged contravention; and
(b) has elected under section 170CFA to begin proceedings in that court for an order under section 170CR in respect of the alleged contravention.
(6) The application must be made within 14 days after the lodgment of an election under subsection 170CFA(6).
(7) A court may accept an application that is lodged out of time if the court considers that it would be unfair not to do so.
170CQ Proof of issues in relation to alleged contravention of section 170CK
In any proceedings under section 170CP relating to a termination of employment in contravention of section 170CK for a reason (a proscribed reason ) set out in a paragraph of subsection (2) of that section:
(a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but
(b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 170CK(3) or (4) applies).
170CR Orders available to courts
(1) If the Court is satisfied that an employer has contravened section 170CK or 170CN in relation to the termination of employment of an employee, the Court may make one or more of the following orders:
(a) an order imposing on the employer a penalty of not more than $10,000;
(b) an order requiring the employer to reinstate the employee;
(c) subject to subsection (2), an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate;
(d) any other order that the Court thinks necessary to remedy the effect of such a termination;
(e) any other consequential orders.
(2) Subsections 170CH(8), (9) and (10) apply in relation to an order mentioned in paragraph (1)(c) of this section as if a reference to the Commission in those subsections were a reference to the Court.
(3) If the Court is satisfied that an employer has contravened section 170CL in relation to a decision to terminate the employment of employees, the Court may make either or both of the following orders:
(a) an order imposing on the employer a penalty of not more than $1,000;
(b) an order requiring the employer not to terminate the employment of employees pursuant to the decision, except as permitted by the order.
(4) Subject to subsection (5), if a court to which an application is made under subsection 170CP(2) or (3) is satisfied that an employer has contravened section 170CM in relation to the termination of the employment of an employee, that court may make an order requiring the employer to pay to the employee an amount of damages equal to the amount which, if it had been paid by the employer to the employee when the employment was terminated, would have resulted in the employer not contravening that section.
(5) If the Commission has made an order under subsection 170CH(4) requiring the employer to pay to the employee an amount in respect of the remuneration lost, or likely to have been lost, by the employee because of the termination, an order under subsection (4) of this section must not be made.
(6) A court to which an application is made under section 170CP must not grant an injunction in respect of a proposed contravention of section 170CK, 170CL, 170CM or 170CN.
Note: As well as the remedies provided in this Subdivision for contravention of section 170CK, 170CL, 170CM or 170CN, there are provisions in other parts of the Act that relate, in part, to termination of employment. See, in particular, sections 170MU and 298K.
(1) Subject to this section, a party to a proceeding under section 170CP must not be ordered to pay costs incurred by any other party to the proceeding unless the court hearing the matter is satisfied that the first‑mentioned party:
(a) instituted the proceeding vexatiously or without reasonable cause; or
(b) caused the costs to be incurred by that other party because of an unreasonable act or omission of the first‑mentioned party in connection with the conduct of the proceeding.
(2) Subsection (1) does not empower a court to award costs in circumstances specified in that subsection if the court does not have the power to do so.
(3) In this section:
costs includes all legal and professional costs and disbursements and expenses of witnesses.
Section 179C applies to a proceeding under section 170CP in respect of an alleged contravention of section 170CM that is started by a person or a trade union in a magistrate’s court in the same way as section 179C applies to an action under section 179 that is started in a magistrate’s court.
6 Section 170FC
Omit “adequate”.
Note: The heading to section 170FC is altered by omitting “ adequate ”.
7 Section 170FD
Omit “,and section 111,”, substitute “(other than section 107) and section 111 (other than paragraph 111(1)(g))”.
8 Section 170GC
Omit “adequate”.
Note: The heading to section 170GC is altered by omitting “ adequate ”.
9 Section 170GD
Omit “,and section 111,”, substitute “(other than section 107) and section 111 (other than paragraph 111(1)(g))”.
10 Subdivision F of Division 3 of Part VIA
Repeal the Subdivision, substitute:
Subdivision F—Other rights relating to termination of employment
170HA Division not to limit other rights
Subject only to the operation of sections 170HB and 170HC, the provisions of this Division are not intended to limit any rights that a person or trade union may have to appeal against termination of employment or to secure the making of awards or orders relating to termination of employment.
170HB Applications alleging harsh, unjust or unreasonable termination
(1) An application must not be made under section 170CE in relation to the termination of employment of an employee on the ground that the termination was harsh, unjust or unreasonable, or on grounds that include that ground, if proceedings (the prior proceedings ) for a remedy in respect of that termination have been commenced by or on behalf of that employee:
(a) under another provision of this Act; or
(b) under another law of the Commonwealth; or
(c) under a law of a State or Territory;
alleging that the termination was:
(d) harsh, unjust or unreasonable (however described); or
(e) unlawful;
for a reason other than a failure by the employer to provide a benefit to which the employee was entitled on the termination.
(2) Subsection (1) does not prevent an application of the kind referred to in that subsection if the prior proceedings:
(a) have been discontinued by the party who began the proceedings; or
(b) have failed for want of jurisdiction.
(3) For the avoidance of doubt, a proceeding under this Act or any other law of the Commonwealth or under a law of a State or Territory seeking compensation, or the imposition of a penalty, because an employer has failed, in relation to a termination of employment, to meet an obligation:
(a) to give adequate notice of the termination; or
(b) to provide a severance payment as a result of the termination; or
(c) to provide any other entitlement payable as a result of the termination;
is taken to be a proceeding alleging that the termination was unlawful because of a failure to provide a benefit to which the employee was entitled on the termination.
(4) If an application of the kind referred to in subsection (1) has been made in respect of a termination, a person is not entitled to take proceedings for any other remedy that, if it had been applied for before the application would, because of the operation of subsection (1), have prevented the application unless the application:
(a) is discontinued by the applicant; or
(b) fails for want of jurisdiction.
170HC Applications alleging contravention of section 170CK
(1) An application must not be made under section 170CE on the ground that the termination of an employee’s employment constitutes an alleged contravention of section 170CK because it was done for a reason set out in subsection 170CK(2) if proceedings (the prior proceedings ) for a remedy in respect of that termination have been commenced by or on behalf of that employee:
(a) under another provision of this Act; or
(b) under another law of the Commonwealth; or
(c) under a law of a State or Territory;
alleging that the termination was unlawful because it was done for such a reason.
(2) Subsection (1) does not prevent an application of the kind referred to in that subsection if the prior proceedings:
(a) have been discontinued by the party who began the proceedings; or
(b) have failed for want of jurisdiction.
(3) If an application of the kind referred to in subsection (1) has been made in respect of a termination, a person is not entitled to take proceedings for any other remedy that, if it had been applied for before that application would, because of the operation of subsection (1), have prevented that application unless the application:
(a) is discontinued by the applicant; or
(b) fails for want of jurisdiction.
11 Subsection 170JC(3)
Repeal the subsection, substitute:
(3) In addition to any other right that an employee covered by an order under this Part may have under Part VIII (as it applies in accordance with this section):
(a) the employee may apply to the Court to enforce the order by injunction or otherwise as the Court thinks fit; and
(b) if the order is an order under Subdivision B of Division 3—the employee may apply to a court of competent jurisdiction as defined in section 177A to enforce the order by injunction.
12 Paragraph 170JD(1)(b)
Omit “covered by the order”, substitute “to whom the order relates”.
13 At the end of section 170JF
Add:
(2) For the avoidance of doubt, an appeal to a Full Bench under section 45 in relation to an order made by the Commission under Subdivision B of Division 3 may be made only on the grounds that the Commission was in error in deciding to make the order.
14 Paragraph 170KA(1)(b)
Omit “, and a copy of the English text of which is set out in Schedule 13”.
15 Subsection 347(1)
After “this Act”, insert “(other than an application under section 170CP)”.
16 Schedules 9, 11 and 13
Repeal the Schedules.
Part 2—Application and transitional provisions
17 Application of amendments
(1) Subject to this item and other provisions in this Act, the Workplace Relations Act as amended by this Schedule applies to terminations of employment occurring on or after 30 March 1994.
(2) The Workplace Relations Act as amended by this Schedule does not apply to a termination of employment occurring before the commencement of this Schedule if an application was made in respect of that termination under section 170EA of the Workplace Relations Act as in force at any time before that commencement.
(3) Subject to Schedule 16 and any provision in an Act, if an application was made under section 170EA of the Workplace Relations Act as in force at any time before the commencement of this Schedule, that Act as so in force continues to be in force in respect of any proceeding arising from that application.
(4) If, in the continuing application of this Act as in force before the commencement of this Schedule, the Commission decides, after the transfer day as defined for the purposes of Part 3 of Schedule 16, to refer a matter to the Industrial Relations Court of Australia, that matter is to be treated, for the purposes of that Part, as if it had been so referred before that day and item 64 of that Part applies accordingly.
(5) Item 14 of Schedule 2 to the Industrial Relations and Other Legislation Amendment Act 1995 continues to have effect in relation to an application made under section 170EA of the Workplace Relations Act as in force before the commencement of this Schedule. However, that item ceases to have effect in relation to a termination of employment for which no application under that section has been made before the commencement of this Schedule.
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