Commonwealth Numbered Regulations - Explanatory Statements

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WORKPLACE RELATIONS AMENDMENT REGULATIONS 2001 (NO. 2) 2001 NO. 323

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.