Industrial Relations Amendment
Act (No. 2) 1994

No. 97 of 1994

An Act to amend the Industrial Relations Act 1988

[Assented to 30 June 1994]

The Parliament of Australia enacts:

Short title etc.

1.(1) This Act may be cited as the Industrial Relations Amendment Act (No. 2) 1994.

(2)  In this Act, “Principal Act” means the Industrial Relations Act 1988¹.

Commencement

2.(1) Subject to subsection (2), this Act commences on the day on which it receives the Royal Assent.

(2)  Section 4 commences:

(a)  if this Act receives the Royal Assent on or before 22 June 1994—on that day, immediately after the commencement of section 17 of the Industrial Relations Reform Act 1993; or

(b)  otherwise—on the day on which this Act receives the Royal Assent.

Insertion of new section

3.  After section 90AA of the Principal Act, the following section is inserted:

Discrimination because of age

“90AB. Nothing in section 90 or 90AA prevents the Commission from doing anything before 22 June 1997 that involves the prescription of rates of wages or minimum rates of wages for employees who have not reached a particular age.”.

Commission to review awards

4.  Section 150A of the Principal Act is amended by adding at the end the following subsection:

“(4)      For the purposes of a review of an award conducted by the Commission (including a review that began before the commencement of this subsection) that is completed before 22 June 1997, the reference in paragraph (2)(b) to a provision, contained in an award, which discriminates against an employee because of age does not include a reference to a provision relating to rates of wages that discriminates against an employee because the employee has not reached a particular age.”.

Regulations may exclude employees as permitted by Convention

5.  Section 170CC of the Principal Act is amended by omitting paragraphs (a) and (b) and substituting the following paragraphs:

“(a)   it is permitted by paragraph 2, 4 or 5 of Article 2 of the Termination of Employment Convention; and

(b)  in respect of an exclusion permitted by paragraph 2 of that Article—it is limited in such a way as to provide adequate safeguards as mentioned in paragraph 3 of that Article.”.

Insertion of new section

6.  After section 170CC of the Principal Act the following section is inserted in Subdivision A of Division 3 of Part VIA:

Exclusion of employees not employed under award conditions whose wages exceed a particular amount

“170CD.(1)      The following Subdivisions do not apply to a termination of employment of an employee who is not employed under award conditions if:

(a)  in respect of an employee who was continuously employed by the employer during the period of 12 months immediately before the termination day—on the termination day the employee’s relevant wages exceeded the applicable amount; or

(b)  in respect of an employee who was continuously employed by the employer for a period less than 12 months immediately before the termination day—on the termination day the employee’s relevant wages exceeded the amount worked out using the formula:

“(2)      The applicable amount for the purposes of subsection (1) is:

(a)   subject to paragraph (b), $60,000; or

(b)  if regulations made in accordance with Subdivision CA prescribe a formula for the annual indexation of the amount referred to in paragraph (a)—the amount worked out using that formula as it applies from time to time.

“(3)      For the purposes of this section, an employee is taken not to be employed under award conditions if wages and conditions of employment of the employee are not regulated by one or more relevant awards that bind the employer of the employee.

“(4)      In this section:

‘days employed’ means the number of days in the period for which the employee was continuously employed by the employer immediately before the termination day;

‘relevant award’ means an award or a State award;

‘relevant wages’, in relation to an employee, means the total amount of the wages that the employee received, or was entitled to receive, from the employer in respect of:

(a)  if paragraph (1)(a) applies to the employee—the period of 12 months referred to in that paragraph; or

(b)  if paragraph (1)(b) applies to the employee—the lesser period referred to in that paragraph;

but, in relation to an employee whose contract of employment prescribes normal hours for the performance of work (whether by prescribing the number of hours in which, or the times at which, work is normally to be performed in a particular period), does not include any wages, additional to normal wages, in respect of additional hours of work performed or in respect of work performed at other times;

‘termination day’ means the day on which the employer terminated the employee’s employment;

‘termination of employment’ means a termination of employment that occurred before, or occurs after, the commencement of this section, but does not include a termination of employment in respect of which an application under section 170EA was made to the Court before that commencement.”.

Insertion of new section

7.    After section 170ED of the Principal Act the following section is inserted:

Onus of proof

“170EDA.(1) If an application under section 170EA alleges that a termination of employment of an employee contravened subsection 170DE(1):

(a)   the termination is taken to have contravened subsection 170DE(1) unless the employer proves that, apart from subsection 170DE(2), there was a valid reason, or valid reasons, of a kind referred to in subsection 170DE(1); and

(b)  if the employer so proves, the termination is nevertheless taken to have contravened subsection 170DE(1) if the applicant proves that, because of subsection 170DE(2), the reason or reasons proved by the employer were not valid.

“(2)      If an application under section 170EA alleges that a termination of employment of an employee contravened subsection 170DF(1) on the ground that the termination:

(a)   was for a particular reason or reasons referred to in that subsection that were stated in the application; or

(b)  was for reasons stated in the application that included a particular reason or reasons referred to in that subsection;

the termination is taken to have contravened subsection 170DF(1) unless the employer proves that:

(c)   the employment was not terminated for the particular reason or reasons or for reasons that included the particular reason or reasons; or

(d)  the particular reason was a reason, or the particular reasons were reasons, to which subsection 170DF(2) or (3) applied.

“(3)      In this section:

‘termination of employment’ means a termination of employment that occurred before, or occurs after, the commencement of this section, but does not include a termination of employment in respect of which an application under section 170EA was made to the Court before that commencement if the Court pronounced final judgment in respect of the application before that commencement.”.

Repeal of section and substitution of new section

8.    Section 170EE of the Principal Act is repealed and the following section is substituted:

Remedies the Court may grant

“170EE.(1) In respect of a contravention of a provision of this Division (other than section 170DB or 170DD) constituted by the termination of employment of an employee, the Court may make the following orders:

(a)  an order requiring the employer to reinstate the employee by:

(i)  reappointing the employee to the position in which the employee was employed immediately before the termination; or

(ii)   appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination; and

(b)  if the Court makes an order under paragraph (a):

(i)  any order that it thinks necessary to maintain the continuity of the employee’s employment; and

(ii)  an order requiring the employer to pay to the employee the remuneration lost by the employee because of the termination.

“(2)      If the Court thinks, in respect of a contravention of a provision of this Division (other than section 170DB or 170DD) constituted by the termination of employment of an employee, that the reinstatement of the employee is impracticable, the Court may make an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate.

“(3)      In working out the amount of the compensation for the purposes of subsection (2), the Court is to have regard to the remuneration that the employee would have received, or would have been likely to have received, if the employer had not terminated the employment, but the amount of compensation:

(a)  must not exceed, in respect of any employee, the amount of the remuneration that would have been received by the employee in respect of the period of 6 months that immediately followed the day on which the termination took effect if the employer had not terminated the employment and the employee had continued to receive remuneration in respect of the employment at the rate at which he or she received remuneration immediately before the termination took effect; and

(b)  must not exceed, in respect of an employee who is not employed under award conditions, the applicable amount on the day on which the termination took effect.

“(4)      The applicable amount for the purposes of paragraph (3)(b) is:

(a)   subject to paragraph (b), $30,000; or

(b)  if regulations made in accordance with Subdivision CA prescribe a formula for the annual indexation of the amount referred to in paragraph (a)—the amount worked out using that formula as it applies from time to time.

“(5)      In respect of a contravention of section 170DB constituted by the termination of employment of an employee, the Court may make an order requiring the employer to pay to the employee an amount of damages equal to the amount of the compensation which, if it had been given by the employer to the employee when the employment was terminated, would have resulted in the employer not contravening that section.

“(6)      Nothing in section 170EC or in this section limits the Court’s power to make an interim or interlocutory order in relation to an application under section 170EA.

“(7)      For the purposes of this section, an employee is taken not to be employed under award conditions if wages and conditions of employment of the employee are not regulated by one or more relevant awards that bind the employer of the employee.

“(8)      In this section:

‘relevant award’ means an award or a State award;

‘termination of employment’ means a termination of employment that occurred before, or occurs after, the commencement of this section, but does not include a termination of employment in respect of which an application under section 170EA was made to the Court before that commencement if the Court pronounced final judgment in respect of the application before that commencement.”.

Insertion of new Subdivision

9.    After Subdivision C of Division 3 of Part VIA, the following Subdivision is inserted:

“Subdivision CA—Regulations may prescribe formula for indexing certain amounts

Regulations may prescribe formula for indexation

“170EI.      The regulations may prescribe a formula for the annual indexation of:

(a)   the amount stated in paragraph 170CD(2)(a); and

(b)  the amount stated in paragraph 170EE(4)(a);

in accordance with increases in the average total weekly earnings (seasonally adjusted) of all employees in Australia.”.

Insertion of new section

10.  After section 170JE of the Principal Act, the following section is inserted:

Representation of employers

“170JEA. Without limiting the operation of paragraphs 42(7)(b) and 469(7)(b), an employer that is a party to a proceeding under this Part before the Commission or the Court may be represented by a member, officer or employee of an association of employers of which the employer is a member.”.

When Commission to refuse to certify agreements

11.  Section 170MD of the Principal Act is amended by inserting after subsection (5) the following subsection:

“(5A)    For the purpose of determining, at a time before 22 June 1997, whether the Commission is required by subsection (5) to refuse to certify an agreement, the Commission is to disregard any provision of the agreement relating to rates of wages that discriminates against an employee because the employee has not reached a particular age.”.

When Commission to refuse to approve implementation of agreements

12.  Section 170ND of the Principal Act is amended by inserting after subsection (10) the following subsection:

“(10A)  For the purpose of determining, at a time before 22 June 1997, whether the Commission is required by subsection (10) to refuse to approve implementation of an agreement, the Commission is to disregard any provision of the agreement relating to rates of wages that discriminates against an employee because the employee has not reached a particular age.”.

NOTE

1.    No. 86, 1988, as amended. For previous amendments, see No. 109, 1988; No. 153, 1989 (as amended by No. 28, 1991); Nos. 37, 71 and 108, 1990; Nos. 19, 62 and 122, 1991; Nos. 52, 92, 94, 109, 132, 179, 196, 212 and 215, 1992; Nos. 98, 104 and 109, 1993; and No. 46, 1994.

[Minister’s second reading speech made in—

House of Representatives on 9 June 1994

Senate on 20 June 1994]