WORKPLACE RELATIONS ACT 1996 - SECT 659 Employment not to be terminated on certain grounds
This legislation has been repealed.
WORKPLACE RELATIONS ACT 1996 - SECT 659
Employment not to be terminated on certain grounds(1) In addition to the principal object of this Division set out in section 635, 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; and
(c) the Termination of Employment Recommendation, 1982, which the General Conference of the International Labour Organisation adopted on 22 June 1982 and is also known as Recommendation No. 166.
(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 ITEA;
(h) absence from work during maternity leave or other parental leave;
(i) temporary absence from work because of the carrying out of a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.
(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.
(5) To avoid doubt, if:
(a) an employer terminates an employee's employment; and
(b) the reason, or a reason, for the termination is that the position held by the employee no longer exists, or will no longer exist; and
(c) the reason, or a reason, that the position held by the employee no longer exists, or will no longer exist, is the employee's absence, or proposed or probable absence, during maternity leave or other parental leave;
the employee's employment is taken, for the purposes of paragraph (2)(h), to have been terminated for the reason, or for reasons including the reason, of absence from work during maternity leave or other parental leave.
(6) For the purposes of this section, an employee carries out a voluntary emergency management activity if, and only if:
(a) the employee carries out an activity that involves dealing with an emergency or natural disaster; and
(b) the employee carries out the activity on a voluntary basis; and
(c) the employee is a member of, or has a member‑like association with, a recognised emergency management body; and
(d) either:
(i) the employee was requested by or on behalf of the body to carry out the activity; or
(ii) no such request was made, but it would be reasonable to expect that, if the circumstances had permitted the making of such a request, it is likely that such a request would have been made.
(7) For the purposes of paragraph (6)(b), an employee carries out an activity on a voluntary basis even if the employee directly or indirectly takes or agrees to take:
(a) an honorarium; or
(b) a gratuity; or
(c) a similar payment;
wholly or partly for carrying out the activity.
(8) In this section:
"body" includes a part of a body.
"designated disaster plan" means a plan that:
(a) is for coping with emergencies and/or disasters; and
(b) is prepared by the Commonwealth, a State or a Territory.
"recognised emergency management body" means:
(a) a body that has a role or function under a designated disaster plan; or
(b) a fire‑fighting, civil defence or rescue body; or
(c) any other body a substantial purpose of which involves:
(i) securing the safety of persons or animals in an emergency or natural disaster; or
(ii) protecting property in an emergency or natural disaster; or
(iii) otherwise responding to an emergency or natural disaster; or
(d) a body specified in the regulations;
but does not include a body that was established, or is continued in existence, for the purpose, or for purposes that include the purpose, of enabling one or more employees to obtain the protection of subsection (2).