Bills Digest No. 79 2001-02
Workplace Relations Amendment (Fair Dismissal) Bill 2002
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer & Copyright Details
Workplace Relations Amendment (Fair
Dismissal) Bill 2002
Date Introduced: 13 February 2002
House: House of Representatives
Portfolio: Employment and Workplace Relations
Commencement: Substantive amendments are to
come into effect on a date to be set by proclamation but no later
than 6 months after the date of Assent.
The Bill exempts
businesses with fewer than 20 employees from the unfair dismissal
provisions of the Workplace Relations Act 1996 (Cwth) (the
The Bill does not affect:
- State unfair dismissal laws, or
- Commonwealth legislation dealing with unlawful
The proposed changes will only apply to persons
hired by a small business after the amendments come into effect and
the existing rights of trainees and apprentices are maintained.
This is not the first proposal to remove small
businesses from the federal unfair dismissal jurisdiction.
On 24 March 1997, Prime Minister Howard promised
new regulations to exclude small business from unfair dismissal
laws in response to the report of the Small Business Deregulation
Task Force chaired by Mr Charlie Bell, the managing director of
'McDonalds'. The Prime Minister's statement promised that the
regulations would only affect employees with less than a year's
continuous service, and who worked for a small business with no
more than 15 employees.(1) Regulations were made on 30
April 1997 to implement the Prime Minister's undertaking and were
to commence on 1 July 1997. The Senate, however, disallowed those
Regulations on 26 June 1997. Later the same day the Minister for
Industrial Relations, Mr Reith, introduced the Workplace Relations
Amendment Bill 1997 containing similar provisions. That Bill was
defeated in the Senate on 21 October 1997. It was re-introduced as
the Workplace Relations Amendment Bill [No. 2], which in turn was
rejected by the Senate on 25 March 1998.
The proposal to exempt small business was
revived after the 1998 General Election. The Workplace Relations
Amendment (Unfair Dismissals) Bill 1998 was introduced on 12
November 1998 providing for the exclusion of small business from
federal unfair dismissal laws. In that instance, it was again to be
businesses with 15 or fewer employees that could attract the
Towards the close of the last Parliament, the
Government introduced the Workplace Relations and Other Legislation
Amendment (Small Business and Other Measures) Bill 2001 containing
the same small business exemption as the present
Bill.(2) The key difference between this and earlier
exemptions was that it would apply to businesses with fewer than 20
employees. The 2001 Bill lapsed with the prorogation of Parliament
for the 10 November 2001 Election.
Prior to 24 March 1994 there were no
Commonwealth unfair dismissal laws except those operating in the
The absence of such laws is largely attributable
to a perceived lack of Commonwealth power to legislate in respect
to the termination of employment generally. The lack of
Commonwealth law necessarily undercut the jurisdiction of federal
industrial courts and tribunals. For private sector employees
covered by federal awards and industrial agreements, access to the
Commonwealth Conciliation and Arbitration Commission (the
Commission) was confined to those rare cases where the affected
employer agreed to participate in the proceedings. In the parlance
of the time, the Commission was said to be exercising a de
facto jurisdiction, meaning that it was acting outside or at
the outer limits of its powers. This necessarily limited the number
of matters dealt with by the Commission and narrowed the choice of
practical remedies available to employees who had been wrongfully
The principal constitutional inhibition on
federal award employees - in the 1980s about 40 percent of the
workforce - accessing remedies for wrongful dismissal was the view
of the High Court that the Commonwealth industrial power was
limited to regulating collective industrial relations. Instances of
wrongful dismissal gave rise to questions of individual and not
collective rights and therefore were outside the scope of
Commonwealth power. No such inhibitions affected the States where
relief was available at common law, and following a path first
taken by South Australia in 1972, as a statutory remedy accessed
from industrial tribunals.(3)
From the late 1970s, the legal obstacles that up
to then had meant that private sector workers employed under
federal awards did not enjoy the same rights as their State award
counterparts began to disappear. Federal unions began to use the
award making process to try to obtain rights on termination for
individual employees. This trend was consolidated by the
Commission's decision in 1984 in the Termination Change and
Redundancy Test Case that endorsed the inclusion in federal awards
and agreements of a provision prohibiting harsh, unjust or
unreasonable termination of employment.(4) The Courts
gave greater scope to the Commonwealth to use heads of power -
principally the external affairs power [section 51 (xxxix)] and the
corporations power [section 51 (xx)] - other than the conciliation
and arbitration power [section 51(xxxv)] to regulate industrial
matters, including disputes over reinstatement.(5) This
use of non-industrial powers to regulate industrial matters had
received a significant boost from the Fraser Government's 1977
amendments to Trade Practices Act 1974 to deal with
secondary boycotts which relied on a cocktail of constitutional
The high-water mark of Commonwealth regulation
of wrongful dismissals(7) generally came in March 1994
when the Keating Government's Industrial Relations Reform Act
1993 (the 1993 Act) came into effect.
The 1993 Act relied on the external affairs
power by reference to Australia's ratification of International
Labour Organisation Convention 158 on the Termination of
Opposition to the 1993 Act was strong and its
residual effects are evident in hostility to the present law that
is much narrower in scope and much more "employer-friendly" than
the version that came into force in March 1994.
The underlying causes for this hostility apart
from understandable employer self-interest were that:
- The law went beyond merely conferring rights on federal award
employees but provided all Australian employees with access to a
federal wrongful dismissal regime where 'no adequate (State)
alternative remedy' existed(9)
- The new law was (and remains) quite comprehensive. It provides
remedies for both 'unfair' and 'unlawful' dismissal. (Instances of
alleged unlawful dismissal are comparatively rare and
ultimately are matters for the Court and not the
Commission.(10) They arise out of specific breaches of
the legislation involving prohibited forms of discrimination on
grounds such as race, colour, sex, sexual preference, age etc and
membership or non membership of a trade union - refer section
170CK(2) of the Principal Act. These specified grounds for
maintaining an action in the Court have proven less contentious
than the less clearly defined grounds available in respect of an
alleged 'harsh, unjust or unreasonable termination' before the
Australian Industrial Relations Commission under sections 170CE and
170CM of the Principal Act.)
- The 1993 Act cast the initial burden of proof on the
- Reliance on the external affairs power was an issue in itself
and formed part of a wider debate about the use of that power,
national sovereignty and the intervention of international agencies
in Australian domestic affairs.
- The law represented something of a culture shock to those
private sector employers not previously subject to comparable State
- As might be expected and with the legislation foreshadowed for
some time, there was an initial rush of applications in the first
year of the new law's operation.
- Some individual determinations made by Australian Industrial
Relations Commission(11) led to concerns that the law
made it unduly difficult to dismiss tardy or incompetent
- Scope seemed to exist for an employee (or unions on their
behalf) to launch unmeritorious actions in the hope that the
employer would settle the claim rather than subject himself or
herself to time consuming and emotionally draining legal
- Many small businesses, being comparatively less well resourced,
operating on narrower margins, or simply unfamiliar with industrial
protocols generally, saw the law as a potential threat to their
Such was the level of concern about the law's
impact on business that it was claimed by the Executive Director of
the NSW Employers Federation, Garry Brack, that the law may have
dissuaded Australia's small businesses from creating between 100
000 and 200 000 jobs.(12)
Scope of the legislation
Since March 1994, there have been many attempts
to wind back the scope of federal unfair dismissal laws.
Many proposals have been defeated and, as
previously noted, attempts to enact a specific small business
exemption have been rejected. The main argument against such an
exemption has been that it represents a 'special pleading' on
behalf of small business interests.
Beginning with amendments made by the Keating
Government, the scope and significance of the federal unfair
dismissal regime has been substantially curtailed. Matters that
were once contentious have been addressed.
The history of and reasons for what might, for
want of a better term, be called this legislative roll back of
federal unfair dismissal laws is detailed in previous Bills
Digests(13) and need not be repeated here.
Some major changes that should be noted are,
- Introduction in 1996 of a legislated 'fair go all round'
requirement to address employer concerns about the onus of proof in
unfair dismissal proceedings.(14)
- A narrowing of the scope of the unfair dismissal jurisdiction
to confine the federal law primarily to workers employed under
federal awards by incorporated employers, persons employed by the
Commonwealth or in a Territory.(15)
- Placing reduced reliance on the external affairs
- Limiting the scope and the incentive to threaten, begin or
continue unmeritorious actions.(17)
The effects of these changes have flowed through
to businesses both big and small.
Apart from general changes to its operation,
numerous specific changes have been made which reduce the Principal
Those not covered by the federal law
- The majority of private sector workers employed in all States
except Victoria and who are not covered by a federal award and
concurrently employed by a corporation.
- Most employees of State Governments and instrumentalities
- Independent contractors.
- Employees who have not on or after 30 August 2001 completed a
qualifying period of employment with an employer (usually 3 months
but this term may be varied by agreement although if longer than 3
months must only for a reasonable period).
- Employees who are not employed under a federal award or
agreement and whose annual remuneration exceeds a prescribed sum
(currently $72 500 per annum).
- Employees engaged under a contract of employment for a
specified period of time or for a specified task (unless the main
purpose of such engagement was to avoid the employer's obligations
under the termination provisions of the Principal Act.)
- Employees serving a 'reasonable' period of probation.
- Casual employees, ie those if they have been working for a
particular employer for less than 12 months.
- Trainees engaged under a National Training Wage Traineeship or
an approved traineeship (as defined in section 170X) which is for a
specified period, or is, for any other reason, limited to the
duration of the agreement.
Two principal effects of the various exclusions
and exemptions enacted since 1994 have up to now resulted in:
- a greater proportion of small businesses coming under the
umbrella of State (not federal) unfair dismissal laws
- the federal jurisdiction tending to over reflect unionists as
opposed to non-unionist members with unfair dismissal claims.
The former tendency is due to the high
proportion of small businesses (sole traders and partnerships)
which are unincorporated and therefore are outside the federal
jurisdiction. The latter trait may also be ascribed to higher union
density levels in the public sector and in larger entities such as
Given the constitutional foundations of the
proposed law and the incidence of union membership, it is likely
however, that the current Bill's main impact on employees will be
on non-unionists. This is a reflection of extremely low union
membership rates in small companies.(19)
The precise impact of the proposal to exempt
small businesses is more difficult to judge. As has been noted in
previous Bills Digests, although it is now closer than it once was,
the ABS definition of small business is not identical to that used
in the Bill.(20) Earlier estimates were that less than
25 percent of Australian business would be affected by the proposed
More recent calculations which allow for a 20
employee cut-off, rather than the 15 employee threshold as applied
with earlier proposals, suggest that perhaps up to about
600 000 employees may be affected by this Bill. This figure is
derived by taking the total number of persons employed by small
businesses with fewer than 20 employees and subtracting those
employees who for constitutional and other reasons would not be
affected by the small business exemption.(22) (It is
perhaps unfortunate that, given the importance of the unfair
dismissal issue and its longevity, that an official estimate of the
number of employees likely to be affected by the exemption is not
readily available for the purposes of parliamentary debate.)
Incidence of Claims
Two other ways of getting a feel for the scale
of the issue and the changes proposed are to look at the trend in
claims over time and to compare the number of unfair dismissal
claims with the level of labour market turnover. Again these are
indicative measures and need to be treated with caution.
The available figures are also not comprehensive
and there are some statistical irregularities arising from
jurisdictional changes such as the transfer of most Victorian
workers to the federal jurisdiction in 1996. In interpreting the
figures account also needs to be taken of variations in the
underlying level of economic activity.
Figures issued by the Department of Employment
and Workplace Relations and its predecessors show a sustained
decline in the number of federal unfair dismissal claims after the
initial burst that followed the commencement of the Keating
Government's Industrial Relations Reform Act 1993 in March
Early figures from the then Department of
Workplace Relations and Small Business comparing the period
January-August 1997 (under the Reith law) with the January-August
1996 period (under the last version of the Keating law) showed a
national decline of about 20 percent in the number of
unfair/unlawful dismissal applications lodged.
Similarly, the number of applications in the
federal jurisdiction fell from 9864 in January-August 1996 to 4 492
in January-August 1997.(23) Later figures, comparing the
first six months of 1998 with the first six months of 1996, showed
that the general decline in applications in the federal system had
been sustained with a fall of about 46 percent over the comparable
period in 1996.(24)
The most recent figures made available by the
Minister in response to a parliamentary Question on Notice point to
a levelling out in the number of applications.(25) The
figures show that the number of unfair dismissal applications
lodged in the federal jurisdiction between 1 July 2000 and 30 June
2001 at 8095. The total national figure encompassing federal and
State jurisdictions was 17 200. Of the 8095 federal matters, 4781
claims were lodged in Victoria where practically all workers come
under the federal law.
The total number of claims for unfair dismissal
in the federal arena of 8095 in the last financial year compares
with figures of 14 533 for January to December 1996 and 7 463 for
January to December 1997.(26) Making allowances for
growth in total employment over the past 5 years, last year's
figures are roughly comparable to those in 1997.
Labour force mobility also provides an
indication of the dimension of the issue. The most recent ABS
Labour Mobility figures for the period ending February 2000 show
that about 1.5 million workers changed their job at least once in
the previous 12 months. In the same period, a total of 2.1 million
persons ceased a job, of these 1.465 million left the job
voluntarily and 698 000 left their last job
As a rough measure then, the number of unfair
dismissal claims nationally (all jurisdictions) represents about
2.5 percent of total labour market involuntary
separations. The comparable rate for federal unfair dismissal
claims as a percentage of total involuntary separations would be
about half that.
Pros and cons
Proposals to restrict the scope of federal
unfair dismissal laws have been debated extensively for close to a
decade both in the parliament and in the wider community.
The merits of some form of small business
exemption have been debated for about 5 or 6 years.
The following is a short summary of the main
arguments 'for' and 'against' a small business exemption and does
not canvass the full gamut of issues that have been raised by
numerous participants in what has been a protracted debate. One
aspect that is dealt with in some detail is the claim made by
proponents of the proposed exemption that the failure to exempt
small business from the legislation is costing jobs. Not only is
this a critical issue in weighing the costs and benefits of the law
but it is a matter which has recently been examined closely by the
Full Federal Court. Likewise, ongoing concerns over the cost and
nature of Commission proceedings still appear to be at issue
despite the Government's successes to date in addressing any
Supporters of the Bill would
argue that a small business exemption is justified as:
- small business is more adversely affected by unfair dismissal
laws and claims than are larger firms with greater resources
- the present law also disadvantages employees by discouraging
small business from taking on additional workers
- current Australian Industrial Relations Commission procedures
for handling unfair dismissal applications need to be further
streamlined and are ill adapted to the small business sector
- the exemption does not affect the rights of existing
- the exemption does not diminish the rights of many vulnerable
employees such as trainees and apprentices
- it does not extend to cases of alleged unlawful
- it is not at odds with Australia's international treaty
obligations and is consistent with exemptions available under the
International Labour Organisation's Termination of Employment
- the Government has a mandate to enact its proposed reforms
- some parliamentary opposition to the Bill is primarily due to
the hold of the union movement over the ALP.(28)
opponents of the Bill might argue that:
- the basic rights of all employees ought to be same irrespective
of the size of their employer.
- there is no evidence to support claims that the federal unfair
dismissal laws have acted as a significant brake on employment
- statutory exclusions from the unfair dismissal regime are
already quite significant and the case for further exemptions
specifically directed to small businesses fails to take these into
- changes to Australian Industrial Relations Commission
procedures, including those mandated during the life of the last
Parliament by way of the Workplace Relations Amendment
(Termination of Employment) Act 2001 more than adequately
address any legitimate concerns about such matters.
- federal unfair dismissal laws are well down the list of small
- the proposed exclusions are out of step with relevant overseas
practice and potentially at odds with Australia's international
treaty obligations. Only a handful of countries exempt small
businesses from wrongful dismissal laws.(30)
- the Government's claim to a mandate for its proposed
amendments, discounts the fact Australia has a bicameral
legislature and the Government was not able in 1996 or 1998 or 2001
to gain sufficient electoral support to secure a majority in the
Senate as well as the House of Representatives. Those parties
opposing the Bill might also argue that their views on the proposed
exemption were thoroughly canvassed prior to and during the last
election campaign and a change of heart now would be a betrayal of
those who voted for them on the basis of their publicly stated
- existing unfair dismissal laws confer substantive rights on
individual employees, not industrial organisations like trade
unions. This is not an issue of unions trying to protect union
power particularly given the extremely low unionisation rates of
workers likely to be subject to the small business
- the Government is being disingenuous in introducing this
proposal yet again, with its real aim being to secure a double
Effect on Job Creation
As already noted a repeated criticism of federal
unfair dismissal laws is that they cost jobs. The Minister for
Employment and Workplace Relations, Mr Abbott, suggested in his
Second Reading Speech to the present Bill:
What is good for Australian small businesses is
good for Australian jobs. Small business is the engine room for job
growth in the Australian economy. And the government believes that
it is in the public interest to open the door to the new jobs that
can be created by small business by easing the pressure that
excessive workplace regulation puts on Australia's hard working
small businessmen and women. If one in 20 small business employers
in Australia took on an additional employee because of a changed
legislative framework for unfair dismissal, then an extra 53,000
jobs would result.(32)
In an answer to a Question without Notice on the
same day Minister Abbott also stated:
The member for Hunter is absolutely right. It is
about time the unfair dismissal burden was taken off the back of
small business. If just one in 20 small businesses were to put on
an extra staff member as a result of changes the government might
make, there would be more than 50,000 new jobs in Australia-50,000
more jobs that Australian workers and would-be workers
Business spokespersons also appear to take a
similar view although in some instances the solutions they have
proposed are rather different to that of the present
The suggestion that federal unfair dismissal
laws have cost many thousands of jobs has been disputed in the
past. It has been pointed out that the awards made against
employers are relatively small, the processes under the (much
amended) Principal Act are relatively inexpensive and that, in any
event there is no hard evidence to establish the alleged
Argument over the effect of unfair dismissal on
casual and total employment levels was recently tested in the case
of Hamzy v Tricon International Restaurants trading as KFC
(2001).(36) In that case the Full Federal Court held
invalid certain provisions in regulation 30B of the Workplace
Relations Regulations dealing with casual employees as being beyond
In Hamzy, Professor Mark Wooden
appeared on behalf of the Commonwealth as an expert witness.
Professor Wooden argued that removal of the exemption for casual
employment from the unfair dismissal provisions of the
Workplace Relations Act 1996 would have 'an adverse effect
on job creation in Australia'. Prompted by counsel, Professor
Wooden then went on to agree that if that was the effect on casual
employment, a similar outcome could be expected in relation to
permanent or full-time employment.
The Full Court rejected Professor Wooden's
arguments. Noting that:
Professor Wooden did not offer any empirical
evidence to support his view. He was unable to do so. In
cross-examination Professor Wooden said 'there certainly hasn't
been any direct research on the effects of introducing unfair
Professor Wooden also conceded that growth in
employment in Australia in the 1990s had been at its strongest when
federal unfair dismissal laws had been at their most protective. He
also agreed that the 'driving force behind employment is clearly
the state of the economy' and not the existence or non-existence of
unfair dismissal laws.(38)
Dr Richard Hall, a Senior Research Fellow at the
University of Sydney also gave expert testimony to the Court. Dr
Hall disagreed with Professor Wooden's underlying analysis and in
dealing with the issue of casual employment, suggested that the
exclusion of probationary employees from the unfair dismissal
regime meant that the risks faced by small business people in
taking on new employees were actually less than commonly
assumed.(39) (Persons hired as probationary workers do
not attract the protection of federal unfair dismissal laws until
their period of probation is completed.)
None of this, of course, need necessarily
persuade small business that they have nothing to fear from the law
as it presently stands. The point being made is that there is no
hard evidence to date to support the assertion that the law has had
a significant impact on employment levels.
A core criticism of the federal unfair dismissal
laws as first enacted was that they placed an unreasonable
administrative burden on employers and encouraged unmeritorious
claims by former workers sometimes encouraged by trade unions or by
The Howard Government's 1996
amendments(40) streamlined procedures under the
Principal Act. In doing so it created separate streams for handling
unfair and unlawful dismissal, introduced a legislated 'fair go all
round approach' to discharging the burden of proof in proceedings,
transferred the jurisdiction of the Industrial Relations Court of
Australia to the Federal Court, and reduced the ambit of federal
unfair dismissal laws.
The Workplace Relations (Termination of
Employment) Act 2001, made further changes to the Principal
Act and Australian Industrial Relations Commission procedures,
- A three month default qualifying period before unfair dismissal
claims can be brought by new employees (period able to be increased
or decreased by written agreement).
- An obligation on the Australian Industrial Relations Commission
to specifically consider the differing capacity of businesses of
different sizes to comply with dismissal process and procedures -
such as the absence of dedicated human resource specialists in
small and medium business.
- Expanded costs orders able to be made against parties who act
unreasonably in pursuing, managing or defending claims.
- Penalties available against lawyers and advisers who encourage
making or pursuing unfair dismissal applications where there is no
reasonable prospect of success, or who encourage defence of
applications where there is no reasonable prospect of a successful
defence (penalties - up to $10 000 company, $2000 individual).
- Requirement for lawyers and advisers to disclose 'no win no
pay' or contingency fee arrangements.
- Power to have the Australian Industrial Relations Commission
dismiss matters following initial conciliation if they have no
reasonable prospect of success.
- Power to have the early dismissal of claims which are made
beyond the jurisdiction of the Australian Industrial Relations
- Power to have speedier dismissal of claims where workers fail
to attend hearings, or where second applications on the same
dismissal are made.
- Tightening the rules relating to the granting of extensions of
time for the lodgement of late applications.
- Tighter rules relating to claims by demoted
These changes came into effect on 30 August
It is also worth noting that in any event, and
prior to the 2001 amendments, only a comparatively small percentage
of unfair dismissal claims in the federal arena were determined
using the formal processes of arbitration. According to the
2000-2001 Annual Report of the Australian Industrial Relations
Commission, of 7809 termination of employment matters finalised
last financial year:
- 6096 (78%) were finalised prior to or at the informal
- a further 1422 (18%) were settled prior to arbitration being
- 291 (4%) were the subject of substantive arbitration.
The substantive provisions of the Bill appear in
Item 1 amends subsection
170CE(1) of the Principal Act to facilitate the inclusion of new
subsection 170CE(5C) in the Principal Act. The amendment makes the
right to apply for relief in cases of unfair dismissal subject to
all existing exclusions and to the new small business exclusion
included in the present Bill.
Item 2 stipulates the main
conditions for determining whether the small business exemption is
applicable in respect to an unfair dismissal application under the
Principal Act. New subsection 170CE(5C) provides
that in calculating the number of persons employed by the
respondent business, the terminated employee and any casual
employee who has been employed by that firm on a regular or
systematic basis for a sequence of periods of at least 12 months,
are included. New subsection 170CE(5D) provides
that the small business exemption does not apply where the
applicant employee was at the time of their dismissal an apprentice
or registered trainee. New subsection 170CE(5E)
provides that the time for calculating the size of the relevant
business for the purposes of the small business exemption shall be
the time that the applicant was served with their notice of
dismissal or was terminated, whichever occurred first.
Item 3 inserts new
section 170CEB dealing with procedural matters. It
provides the means for the Australian Industrial Relations
Commission to deal with applications that fail because of the small
business exemption. The new section permits the Commission to
dismiss an application for relief without a hearing.
Item 4 inserts new
subsection 170JD(3A) which provides that a Commission
order dismissing an application under proposed section
170CEB may not be varied or revoked.
Item 5 inserts new
subsection 170JF(2A) preventing appeals to a Full Bench of
the Commission in relation to orders made under new section
Item 6 provides that the small
business exemption is only applies to employment relations that
began after the present Bill comes into operation.
- Refer, More Time for Business, pp. 85.
- Refer Bills Digest No. 60 2001-02.
- Breen Creighton and Andrew Stewart, Labour Law: An
Introduction, 3rd edition, Federation Press, 2000,
- For a time, this approach was extended, with the Federal Court
treating the Termination, Change and Redundancy provisions as
implied terms in each individual employee's contract of employment.
In Byrne v Australian Airlines (1995) 185 CLR 410, the
High Court, however, rejected the Federal Court's 'implied term'
reasoning and the further extension of individual termination
rights became a matter for legislation or individual negotiation
between employers and employees.
- See: Re Ranger Uranium Mines Pty Ltd: Ex parte Federated
Miscellaneous Workers Union Australia (1987) 163 CLR 656 and
subsequent cases referred to by B. Creighton and A. Stewart, op
cit, p. 311.
- Under sections 45D and 45E of the Trade Practices Act.
- 'Wrongful dismissal' is used here as a generic term to refer to
both unfair and unlawful dismissals, ie any instance where an
employer terminates a worker's employment without legal authority.
- An approach which was substantially upheld by the High Court in
Victoria v Commonwealth (1996) 187 CLR 416.
- There was at the time considerable doubt as to whether any of
the State regimes represented an 'adequate alternative' to the
federal law. Hence, there was a not entirely baseless concern at
the time that the federal regime was in fact a unitary or national
- Refer section 170CFA which requires an applicant to make an
election between Court and Commission proceedings.
- Created under the Industrial Relations Act 1988 as the
replacement for the Conciliation and Arbitration Commission.
- Australian Financial Review, 11 April 1995.
- Bills Digest No.36 1998-99. http://www.aph.gov.au/library/pubs/bd/1998-99/99bd036.htm
and Bills Digest No. 60 2001-02. http://www.aph.gov.au/library/pubs/bd/2001-02/02bd060.htm
- Workplace Relations and Other Legislation Amendment Act
1996 - refer section 170CA(2) of the Principal Act.
- Workplace Relations and Other Legislation Amendment Act
1996 - refer section 170CB of the Principal Act.
- Workplace Relations and Other Legislation Amendment Act
1996 - refer section 170CA(1)(e) of the Principal Act.
- Workplace Relations (Termination of Employment) Act
2001 - refer sections 170CF, 170CFA, 170CG, 170CH of the
- See Australian Industrial Relations Commission site for more
- See below in 'Pros and Cons'. Non-unionists will probably
account for about 90 percent of those employees affected by the
exemption. See also Endnote 32.
- ABS No. 1321.0, Small Business in Australia 1999, p.
- Bills Digest No.36 1998-99, pp. 8-10, http://www.aph.gov.au/library/pubs/bd/1998-99/99bd036.htm
- The Government estimated in 2001 that about 35 percent of
employees in businesses with less than 20 employees were covered by
the federal industrial relations system. This it was said meant
that about 770 000 small business employees came within the federal
industrial relations system. (Refer: Explanatory
Memorandum, Workplace Relations and Other Legislation
Amendment (Small Business and Other Measures) Bill 2001, p.5).
However, not every federal award employee is covered by federal
unfair dismissal laws. Those who do not work in a Territory, or in
Victoria, or for the Commonwealth, or for a corporation are not
covered. As only something like 43% of small businesses are
incorporated, a large number of their employees will not be
covered. Others such as casuals, staff on probation, some trainees
etc will fall outside the ambit of the federal unfair dismissal
regime because of other exclusions in the Principal Act.
- Answers provided to Senator Andrew Murray (Australian
Democrats, WA) by the Department of Employment, Workplace Relations
and Small Business. See Senate Economics Legislation Committee,
Report: Workplace Relations Amendment Bill 1997, October
1997, Appendix 5.
- Senate, Parliamentary Debates, 4 March 1998, pp.
- Senate, Parliamentary Debates, 13 February 2002, p.
- Senate, op cit, 4 March 1998, pp. 421-422.
- ABS, Labour Mobility, Cat No. 6209.0, 12 October 2000,
- House of Representatives, Parliamentary Debates, 13
February 2002, p. 77.
- Canberra Times, "Abbott attacked over 'fair dismissal
Bill'", 14 February 2002.
- International Labour Organisation, Protection Against
Unjustified Dismissal, Geneva, 1995, pp. 27-29.
- ABS data complied by the Bureau for the purposes of this Digest
show unionisation rates of only 9.2% for firms with fewer than 10
employees and of 14.2% amongst firms with 10 to 19 workers. Figures
are derived from ABS Cat No. 6310.0, Employee Earnings,
Benefits and Trade Union Membership, August 2000.
- House of Representatives, Parliamentary Debates, 13
February 2002, p 33.
- ibid, p. 77.
- The Australian, 'Easing of law 'would create jobs', 14
- Refer Bills Digest No.116 1997-98, pp 12-13: http://www.aph.gov.au/library/pubs/bd/1997-98/98bd116.htm.
and Bills Digest No. 36 1998-99, pp. 15-16: http://www.aph.gov.au/library/pubs/bd/1998-99/99bd036.htm
citing data made available by the now defunct Industrial Relations
Court of Australia.
-  FCA 1589 (16 November 2001), http://www.austlii.edu.au/au/cases/cth/federal_ct/2001/1589.html
- ibid, para 60.
- ibid, pars 65-67.
- ibid, para 69.
- Workplace Relations and Other Legislation Amendment Act
- Cited in Bills Digest No. 60 2001-2002, pp. 5-6. Quoting
Joint Media Release by Hon Tony Abbott and Hon Ian
Macfarlane, 'Government secures unfair dismissal changes', 8 August
19 February 2002
Bills Digest Service
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