Workplace Relations Regulations (Amendment) (Cth)

Statutory Rules 1996

No. 307 1

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Workplace Relations Regulations 2(Amendment)

I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Workplace Relations Act 1996.

Dated 11 December 1996.

 WILLIAM DEANE

 Governor-General

By His Excellency’s Command,

PETER REITH

Minister for Industrial Relations

____________

1.   Commencement

1.1 These Regulations commence on the day Schedule 6 of the Workplace Relations and Other Legislation Amendment Act 1996 commences. 

2.   Amendment

2.1   The Workplace Relations Regulations are amended as set out in these Regulations.

3.   Regulation 2 (Interpretation)

3.1   Insert the following definition:

“‘old IR agreement’ means an agreement certified or approved under:

• (a)

  section 115 of the Industrial Relations Act 1988, as in force before the commencement of the Industrial Relations Amendment Act 1992; or

• (b)

  Division 3A of Part VI of the Industrial Relations Act 1988, as in force before the commencement of Schedule 2 to the Industrial Relations Reform Act 1993; or

• (c)

  Part VIB of the Industrial Relations Act 1988, as in force before the commencement of Schedule 8 to the Workplace Relations and Other Legislation Amendment Act 1996;”.

4.   Regulation 30A (Interpretation—Division 1)

4.1   Definition of “daily hire employee” (subparagraph (a) (i)):

Omit “award, a State award or an employment agreement;”, substitute “award, a certified agreement, an AWA, a State award, a State employment agreement or an old IR agreement;”.

 

4.2   Definition of “daily hire employee” (subparagraph (a) (ii)):

Omit “award, State award or employment agreement”, substitute “award, certified agreement, AWA, State award, State employment agreement or old IR agreement”.

 

4.3   Definition of “daily hire employee” (paragraph (b)):

Omit “award, State award or employment agreement”, substitute “award, State award, State employment agreement or old IR agreement”.

 

4.4   Definition of “employment agreement”:

Omit the definition.

 

5.   Regulation 30B (Employees excluded from requirements for termination of employment)

5.1   Subregulations 30B (1) and (2):

Omit the subregulations, substitute:

 “30B.(1)For subsection 170CC (1) of the Act, the following kinds of employees are excluded from the operation of Subdivisions B, C, D, E and F of Division 3 of Part VIA of the Act:

• (a)

  an employee engaged under a contract of employment for a specified period of time;

• (b)

  an employee engaged under a contract of employment for a specified task;

• (c)

  an employee serving a period of probation or a qualifying period of employment, if the duration of the period or the maximum duration of the period, as the case may be, is determined in advance and, either:

  • (i)

    the period, or the maximum duration, is 3 months or less; or

  • (ii)

    the period, or the maximum duration:

    • (A)

      is more than 3 months; and

    • (B)

      is reasonable, having regard to the nature and circumstances of the employment;

• (d)

  a casual employee engaged for a short period, within the meaning of subregulation (3);

• (e)

  a trainee whose employment under a traineeship agreement or an approved traineeship:

  • (i)

    is for a specified period; or

  • (ii)

    is, for any other reason, limited to the duration of the agreement;

• (f)

  an employee:

  • (i)

    who is not employed under award conditions; and

  • (ii)

    to whom subsection 170CC (3) or (4) of the Act applies.

 “(2) Subregulation (1) does not apply to an employee of a kind engaged under a contract of a kind mentioned in paragraph (1) (a) or (b) if the main purpose of the engagement under a contract of that kind is, or was at the time of the employee’s engagement, to avoid the employer’s obligations under Subdivision B, C, D or E of Division 3 of Part VIA of the Act.”. 

5.2   Paragraph 30B (3) (a):

Omit “6 months”, substitute “12 months”.

 

5.3   Add at the end:

 “(4) For subparagraph (1) (f) (i), an employee is taken not to be employed under award conditions unless the employer is bound, in relation to the employee’s wages and conditions of employment, by an award, a certified agreement, an AWA or an old IR agreement.”. 

6.   Regulation 30BA (Exclusion of trainees)

6.1   Omit the regulation, substitute:

Employees excluded from particular requirements for termination of employment

 “30BA.For subsection 170CC (1) of the Act, the following kinds of employees are excluded from the operation of sections 170CL and 170CM and Subdivisions D and E of Division 3 of Part VIA of the Act:

• (a)

  a casual employee, except a casual employee engaged for a short period within the meaning of subregulation 30B (3);

• (b)

  a daily hire employee:

  • (i)

    who is performing work in the building and construction industry (including work in, or in connection with, the erection, repair, renovation, maintenance, ornamentation or demolition of buildings or structures); or

  • (ii)

    who is performing work in the meat industry in, or in connection with, the slaughter of livestock;

• (c)

  an employee whose employment is regulated by Schedule X (Marine Cooks, Marine Stewards and Seamen’s Engagement System Schedule) of the award known as the Maritime Industry Seagoing Award 1983, as in force on 16 November 1994;

• (d)

  a weekly hire employee who is performing work in, or in connection with, the meat industry, whose termination of employment is determined solely by seasonal factors.

Specified rate

 “30BB.For paragraphs 170CC (3) (b) and (4) (b) of the Act, the specified rate is $64,000 per year, or that amount as affected by indexation in accordance with regulation 30BF.”. 

7.   Regulation 30BC (Exclusion of certain casual etc. employees)

7.1   Omit the regulation, substitute:

Rate of remuneration per year

 “30BC.For paragraph 170CC (4) (b) of the Act, the rate of remuneration per year that is taken to be applicable to an employee immediately before termination is:

• (a)

  for an employee who was continuously employed by the employer and was not on leave without full pay at any time during the period of 12 months immediately before termination—the greater of:

  • (i)

    the remuneration that the employee actually received in that period; and

  • (ii)

    the remuneration that the employee was entitled to receive in that period; or

• (b)

  for an employee who was continuously employed by the employer and was on leave without full pay at any time during the period of 12 months immediately before termination—the total of:

  • (i)

    the actual remuneration received by the employee for the days during that period that the employee was not on leave without full pay; and

  • (ii)

    for the days that the employee was on leave without full pay an amount worked out using the formula:

; or

• (c)

  for an employee who was continuously employed by the employer for a period less than 12 months immediately before termination—the amount worked out using the formula:

.

Fee for application to Commission to deal with termination

 “30BD. (1) A fee of $50 is payable for lodgment of an application under subsection 170CE (1), (2), (3) or (4) of the Act. 

 “(2) If the Registrar is satisfied that a person lodging an application will suffer serious hardship if the lodgement fee is paid by the person, no fee is payable for the application. 

Amount taken to have been received by the employee

 “30BE. For paragraph 170CH (8) (b) of the Act, an employee is taken to have received the remuneration that the employee would ordinarily have received during the period of leave if the employee had not been on leave without pay or without full pay.

Annual indexation of certain amounts

 “30BF.(1) This regulation prescribes a formula under which each following amount (‘the indexable amount’) is to be varied annually by the indexation factor (if any):

• (a)

  the amount mentioned in regulation 30BB;

• (b)

  the amount mentioned in paragraph 170CH (9) (b) of the Act.

 “(2) In this regulation:

‘base weekly earnings average’ means the last amount published by the Australian Statistician before 1 July 1996 as an estimate (except a preliminary estimate) of the average total weekly earnings (seasonally adjusted) for full time adult employees of all employees in Australia in a particular month;

‘current weekly earnings average’, in relation to an indexation day, means the last amount published by the Australian Statistician before that day as an estimate (except a preliminary estimate) of the average total weekly earnings (seasonally adjusted) for full time adult employees of all employees in Australia in a particular month;

‘indexation day’ means 1 July 1997 or 1 July in a later year;

‘indexation factor’, for an indexation day, means the number, worked out to 3 decimal places, resulting from the following formula:

.

 “(3) If at any time (whether before or after the commencement of this regulation) the Australian Statistician publishes an estimate of the average total weekly earnings (seasonally adjusted) for full time adult employees in a particular month in substitution for such an estimate (except a preliminary estimate) previously published by the Australian Statistician for that month, the publication of the later estimate is to be disregarded for the purposes of this regulation.

 “(4) Subject to subregulation (5), if, on any indexation day, the indexation factor is greater than 1, then, on and after that day, until a later application of this subregulation, an indexable amount is taken to be replaced by the amount worked out by multiplying the indexable amount by the indexation factor.

 “(5)If an amount worked out under subregulation (4) is not $100, or a multiple of $100:

• (a)

  if the amount is not $50, or a multiple of $50—it is to be rounded up or down to $100, or the nearest amount that is a multiple of $100 as appropriate; or

• (b)

  if the amount is $50, or a multiple of $50—it is to be rounded up to $100, or the next highest amount that is a multiple of $100 as appropriate.”.

8.   Regulation 30C (Whether period of service continuous—matters to be disregarded)

8.1   Omit the regulation, substitute:

Temporary absence because of illness or injury

 “30C.(1)For paragraph 170CK (2) (a) of the Act, an employee’s absence from work because of illness or injury is a temporary absence if:

• (a)

  the employee provides a medical certificate for the illness or injury within:

  • (i)

    24 hours after the commencement of the absence; or

  • (ii)

    such longer period as is reasonable in the circumstances; or

• (b)

  the employee:

  • (i)

    is required by the terms of an award, a certified agreement, an AWA, a State award, a State employment agreement or an old IR agreement to:

    • (A)

      notify the employer of an absence from work; and

    • (B)

      substantiate the reason for the absence; and

  • (ii)

    complies with those terms.

 “(2) Subregulation (1) does not apply if:

• (a)

  the employee’s absence extends for more than 3 months, unless the employee is on paid sick leave for the duration of the absence; or

• (b)

  the total absences of the employee, within a 12 month period, whether based on a single or separate illnesses or injuries, extend for more than 3 months, unless the employee is on paid sick leave for the duration of the absences.

 “(3) In this regulation:

‘medical certificate’ means a certificate signed by a medical practitioner that states that the employee is unable to work during a particular period;

‘medical practitioner’ means a person registered as a medical practitioner under a State or Territory law that provides for the registration or licensing of medical practitioners. 

Required period of notice—exception for serious misconduct

 “30CA. (1) For paragraph 170CM (1) (c) of the Act, serious misconduct includes:

• (a)

  wilful, or deliberate, behaviour by an employee that is inconsistent with the continuation of the contract of employment; and

• (b)

  conduct that causes imminent, and serious, risk to:

  • (i)

    the health, or safety, of a person; or

  • (ii)

    the reputation, viability or profitability of the employer’s business. 

 “(2) For subregulation (1), conduct that is serious misconduct includes:

• (a)

  the employee, in the course of the employee’s employment, engaging in:

  • (i)

    theft; or

  • (ii)

    fraud; or

  • (iii)

    assault; or

• (b)

  the employee being intoxicated at work; or

• (c)

  the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

 “(3) Subregulation (2) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

 “(4) For this regulation, an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duty or with any duty that the employee may be called upon to perform.

Required period of notice—ascertaining period of continuous service

 “30CB.(1) For subsection 170CM (3) of the Act, in ascertaining an employee’s period of continuous service, the following actions and events must be disregarded:

• (a)

  a termination, suspension, stand down or other interruption imposed by the employer for the purpose of avoiding an obligation under section 170CM of the Act;

• (b)

  absence of the employee, on authorised leave, from work;

• (c)

  absence of the employee from work due to:

  • (i)

    the employee’s illness; or

  • (ii)

    an injury to the employee;

• (d)

  absence of the employee from work, if there was reasonable cause for the absence;

• (e)

  absence of the employee from work due to:

  • (i)

    action that is protected action under section 170ML of the Act; or

  • (ii)

    AWA industrial action within the meaning of subsection 170WB (1) of the Act;

• (f)

  any other absence from work, unless the employer has given the employee notice, under subregulation (4), that the employer will take an absence by the employee to break the employee’s continuity of service with the employer. 

“(2) Paragraphs (1) (c)and (d) do not apply unless:

• (a)

  if the employee is required, under a relevant award, a certified agreement, an AWA, a State award, a State employment agreement or an old IR agreement to notify the employer of an absence and to substantiate the reason for the absence—the employee has done so; or

• (b)

  in any other case—the employee informs the employer within 24 hours after the commencement of the absence, or such longer period as is reasonable in the circumstances, of:

  • (i)

    the employee’s absence; and

  • (ii)

    whether the absence is due to illness, injury or other reason; and

  • (iii)

    the likely duration of the absence.

 “(3) Paragraph (1) (e) does not apply if the Commission or a State industrial authority has determined that, for the purpose of determining the employee’s entitlement to notice of termination or to compensation instead of notice, an absence is to be taken as breaking the employee’s continuity of service.

 “(4)For paragraph (1) (f), notice must be given:

• (a)

  in writing; and

• (b)

  by delivering it to the employee personally or posting it to the employee’s last known address; and

• (c)

  during, or within 14 days after the end of, the period of absence.

 “(5) A notice under paragraph (1) (f):

• (a)

  may be withdrawn by the employer; and

• (b)

  if withdrawn, is taken not to have been given.

Compensation in lieu of required period of notice—commission or piece rates employees

 “30CC. For paragraph 170CM (5) (c) of the Act, the amount taken to be payable, under an employee’s contract of employment, to an employee whose remuneration before termination was determined wholly or partly on the basis of commission or piece rates is the average actual remuneration received by the employee:

• (a)

  for an employee who was continuously employed by the employer for a period of 3 months or more immediately before termination—in the 3 months before termination; or

• (b)

  for an employee who was continuously employed by the employer for a period less than 3 months immediately before termination—in that period. 

Inapplicability of section 170CM of the Act—succession, assignment or transmission of business

 “30CD. There is excluded from the operation of section 170CM of the Act a termination of employment that occurs because of the succession, assignment or transmission of the business of the employer (‘the former employer’) to another person (‘the new employer’) if:

• (a)

  the employee is employed by the new employer after the succession, assignment or transmission; and

• (b)

  either:

  • (i)

    the new employer is under an obligation, enforceable by the employee, to recognise, for subsection 170CM (2) of the Act, the employee’s entire period of service to the former employer as continuous with service to the new employer; or

  • (ii)

    the new employer is under an obligation to:

    • (A)

      give the period of notice; or

    • (B)

      pay the amount of compensation instead of notice;

• that would have been required of the former employer if there had been a termination (except for serious misconduct) during the minimum period that would have applied if the employee’s employment had been terminated at the time the succession, assignment or transmission occurred.”.  

9.   Regulation 30D (Termination on grounds of temporary absence from work)

9.1   Omit the regulation.

10.   Regulation 30DAA (Consent arbitration—procedures and powers of Commission)

10.1   Omit the regulation.

11.   Regulation 30DAB (Appeal to Full Bench—grounds of appeal)

11.1   Omit the regulation.

12.   Regulation 30DA (Formula for annual indexation of certain amounts)

12.1   Omit the regulation.

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NOTES

1. Notified in the Commonwealth of Australia Gazette on 18 December 1996.

2. Statutory Rules 1989 No. 12 as amended by 1989 Nos. 107 and 288; 1990 Nos. 328 and 461; 1991 Nos. 9, 11, 73, 137 and 366; 1992 Nos. 81, 139, 158, 232, 274, 339, 351, 357, 435 and 436; 1993 Nos. 22, 23, 41, 61, 128 and 330; 1994 Nos. 68, 79, 185, 244, 287 and 386; 1995 Nos. 376 and 434; 1996 Nos. 80, 168 and 269.