Workplace Relations Amendment Regulations 2001 (No. 2)

Administered by Department of Employment and Workplace Relations

Legislation au F2001B00563 Regulations Not in force Legislative Instrument

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Workplace Relations Amendment Regulations 2001 (No. 2) 2001 No. 323

EXPLANATORY STATEMENT

Statutory Rules 2001 No. 323

Issued by the authority of the Minister for Employment and Workplace Relations

Workplace Relations Act 1996

Workplace Relations Amendment Regulations 2001 (No. 2)

Section 359 of the Workplace Relations Act 1996 (the Act) provides that the Governor-General may make regulations prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Section 170CC of the Act provides that the regulations may exclude from the operation of specified provisions of Division 3 of Part VIA of the Act specified classes of employees including 'employees engaged on a casual basis for a short period' (paragraph 170CC(1)(c)).

The Regulations exclude casual employees engaged by a particular employer for a short period (i.e. if the occasions on which the employees work under the engagement occur over a period of less than 12 months) from the operation of various provisions of the Act relating to termination of employment, pursuant to section 170CC.

The Regulations replace the former Regulations that purported to exclude specified casual employees from the operation of various provisions of the Act relating to termination of employment (paragraph 30B(1)(d) and subregulation 30B(3) of the Workplace Relations Regulations 1996), which were found to be invalid by the Full Court of the Federal Court in Hamzy v Tricon International Restaurants trading as KFC [2001] FCA 1589.

The Regulations do not include elements of the former Regulations (that the employee's engagement be on a regular and systematic basis and that the employee has a reasonable expectation of continuing employment by the employer) which the Court found were beyond the regulation-making power conferred by paragraph 170CC(1)(c).

Details of the Regulations are in the attachment.

The Regulations commence on gazettal.

ATTACHMENT

WORKPLACE RELATIONS AMENDMENT REGULATIONS 2001 (No. 2)

Regulation 1: Name of Regulations

Regulation 1 sets out the name of the regulations.

Regulation 2: Commencement

Regulation 2 provides that the regulations commence on gazettal.

Regulation 3: Amendment of Workplace Relations Regulations 1996

Regulation 3 is a formal provision, that provides that the Workplace Relations Regulations 1996 (the Regulations) is amended as set out in Schedule 1.

Schedule 1: Amendments

Item 1: Paragraph 30B(1)(d)

Paragraph 170CC(1)(c) of the Workplace Relations Act 1996 (the Act) provides that regulations may exclude from specified provisions of Division 3 of Part VIA of the Act 'employees engaged on a casual basis for a short period'.

Item 1 of Schedule 1 replaces paragraph 30B(1)(d) of the Regulations (which was held to be invalid by the Full Court of the Federal Court in Hamzy v Tricon International Restaurants trading as KFC [2001] FCA 1589).

New paragraph 30B(1)(d) excludes a casual employee engaged by a particular employer for a short period, within the meaning of subregulation 30B(3), from the operation of subdivisions B, C, D, E and F of Division 3 of Part VIA of the Act.

Item 2: Subregulation 30B(3)

Item 2 of Schedule 1 replaces former subregulation 30B(3) (which was held to be invalid by the Full Court of the Federal Court in Hamzy v Tricon International Restaurants trading as KFC [2001] FCA 1589).

The former regulation provided that, for the purposes of paragraph 30B(1)(d), a casual employee was taken to be a engaged for a short period unless:

•       the employee was engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months; and

•       the employee had, or but for the decision by the employer to terminate the employee's employment, would have had, a reasonable expectation of continuing employment by the employer.

The requirements in the former regulations that the employee:

•       be engaged on a regular and systematic basis; and

•       had, or but for the decision by the employer to terminate the employee's employment, would have had, a reasonable expectation of continuing employment by the employer,

were found by the Court in Hamzy to be beyond the regulation-making power conferred by paragraph 170CC(1)(c), and consequently invalid.

In the decision, the Court said: '[w]e think it was open to the Governor-General to specify what should constitute a "short period", for the purpose of regulations carrying that provision [section 170CC] into effect, provided only that the selected period might reasonably be regarded as falling within the description "short period" '.

The new subregulation 30B(3) provides that a casual employee is engaged for a 'short period' if the occasions on which the employee works under the engagement occur over a period of less than 12 months. The new subregulation does not include the requirements which the Court in Hamzy considered rendered the previous subregulation invalid.

 

Overview

The Workplace Relations Amendment Regulations 2001 (No. 2) were enacted to address the issue of invalid regulations concerning the exclusion of casual employees from certain provisions of the Workplace Relations Act 1996. This was necessitated by the decision of the Full Court of the Federal Court in Hamzy v Tricon International Restaurants trading as KFC [2001] FCA 1589, which found certain aspects of the prior regulations beyond the regulation-making power. The Regulations were issued by the authority of the Minister for Employment and Workplace Relations, under section 359 of the Workplace Relations Act 1996, and aim to rectify the legal shortcomings identified by the Court. Specifically, the Regulations exclude casual employees engaged by a particular employer for a short period, defined as those whose work occurs over a period of less than 12 months, from specified provisions of the Act relating to the termination of employment. This change ensures compliance with the regulatory framework while accommodating the Court's findings.

Scope and Application

The Workplace Relations Amendment Regulations 2001 (No. 2) amends the Workplace Relations Regulations 1996 to exclude casual employees engaged for a short period from certain provisions of the Workplace Relations Act 1996. These regulations apply to employers and employees across Australia, aligning with the jurisdiction of the Commonwealth. Specifically, the regulations exclude casual employees engaged by a particular employer for a short period, defined as occasions on which the employee works occurring over a period of less than 12 months, from the operation of various provisions of the Act relating to the termination of employment. This exclusion follows a decision by the Full Court of the Federal Court, which found certain exclusion criteria in the former regulations to be beyond the regulation-making power conferred by the Act. The new regulations aim to correct these issues by providing a clear and valid criterion for the exclusion of casual employees engaged for a short period. The regulations do not include the previously invalidated criteria regarding regular and systematic engagement and reasonable expectation of continuing employment, focusing instead solely on the duration of engagement. These amendments ensure compliance with the legal framework while providing clarity for employers and employees alike.

Key Provisions

The Workplace Relations Amendment Regulations 2001 (No. 2) primarily amend the Workplace Relations Regulations 1996 to exclude certain casual employees from specified provisions of the Workplace Relations Act 1996 (the Act). Section 170CC of the Act allows for the exclusion of certain classes of employees, including those engaged on a casual basis for a short period, from specified provisions of Division 3 of Part VIA of the Act (Regulation 3, Schedule 1, Item 1). These provisions relate to the termination of employment, and the Regulations now exclude casual employees engaged by a particular employer for a short period, defined as those occasions on which the employee works under the engagement occurring over a period of less than 12 months (Regulation 3, Schedule 1, Item 2). The Regulations impose obligations on employers to ensure that their casual employees fit within the criteria for exclusion. Employers must determine whether the casual employee's engagement falls within the definition of a short period and apply this consistently across their workforce. Employers must also maintain records to substantiate the short period criterion, should they be required to do so in a legal context. Failure to comply with these obligations may result in the casual employee being entitled to the protections afforded by the excluded provisions of the Act. The Act itself does not prescribe specific offences or penalties for breaches of the Regulations. However, any failure by an employer to correctly apply the Regulations may result in a casual employee being entitled to seek remedies under the Act, potentially including unfair dismissal claims. The penalties for unfair dismissal can include reinstatement, compensation, or both, as determined by the Fair Work Commission or the Federal Court, depending on the circumstances of the case. It is important to note that while the Regulations do not directly impose financial penalties, the consequences of incorrectly applying them can be significant for employers.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.