WORKPLACE RELATIONS ACT 1996 - SECT 643 Application to Commission to deal with termination under this Subdivision
This legislation has been repealed.
WORKPLACE RELATIONS ACT 1996 - SECT 643
Application to Commission to deal with termination under this Subdivision(1) Subject to subsections (5), (6), (8) and (10), 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 659, 660 or 661; 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 (13), 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 660.
(3) Subject to subsection (13), 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 659 and 661.
(4) Subject to subsection (13), 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 660.
(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 637(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 (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.
(7) For the purposes of subsection (6), the qualifying period of employment is:
(a) 6 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.
(8) 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, if the employee's employment was terminated for genuine operational reasons or for reasons that include genuine operational reasons.
(9) For the purposes of subsection (8), operational reasons are reasons of an economic, technological, structural or similar nature relating to the employer's undertaking, establishment, service or business, or to a part of the employer's undertaking, establishment, service or business.
(10) 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, if, at the relevant time, the employer employed 100 employees or fewer, including:
(a) the employee whose employment was terminated; and
(b) any casual employee who had been engaged by the employer on a regular and systematic basis for at least 12 months;
but not including any other casual employee.
(11) For the purposes of calculating the number of employees employed by an employer as mentioned in subsection (10), related bodies corporate (within the meaning of section 50 of the Corporations Act 2001 ) are taken to be one entity.
(12) For the purposes of subsection (10):
(a) the relevant time is the time when the employer gave the employee the notice of termination, or the time when the employer terminated the employee's employment, whichever happened first; and
(b) for the purposes of calculating the number of employees employed by the employer, employee has the same meaning as in paragraph (b) of the definition of that term in section 636.
(13) 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.
(14) An application under subsection (1) or (3) must be lodged within 21 days after the day on which the termination took effect, or within such period as the Commission allows on an application made during or after those 21 days.
(15) An application under subsection (2) or (4) must be lodged within 21 days after the employee is given notice of the decision to terminate the employee's employment, 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 .
(16) An application under subsection (1), (2), (3) or (4) may be discontinued by the applicant in accordance with rules made under section 124. The applicant may do so whether or not the employer and the employee have agreed to settle the matter.