Employment Protection Act 1982

This Act may be cited as the Employment Protection Act 1982.

Sections 1 and 2 shall commence on the date of assent to this Act.

Except as provided by subsection (1), this Act shall commence on such day as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette.

Sections 7 and 8 do not apply in relation to any termination or proposed termination of employment if—

where notice of the termination is or was given to the employee—the notice is or was given before the end of the period of 7 days commencing on and including the day appointed and notified under subsection (2), or

where notice of the termination is not or was not given to the employee—the termination occurs or occurred before the end of that period.

In this Act, except in so far as the context or subject-matter otherwise indicates or requires—

agreement means an agreement within the meaning of the Principal Act.

apprentice means an apprentice within the meaning of the Principal Act.

award means an award within the meaning of the Principal Act.

Commission means the Industrial Relations Commission.

conciliation commissioner means a conciliation commissioner appointed under the Principal Act.

employee means a person employed by an employer, and includes an apprentice, but does not include an employee of the Crown within the meaning of the Principal Act.

employer means a person, firm, company or corporation employing persons working in any industry within the meaning of the Principal Act, whether on behalf of himself, herself or itself or any other persons, and includes a person employing an apprentice, but does not include the Crown or a public authority within the meaning of the Principal Act.

group means a group referred to in section 5.

member means a judicial member of the Commission or a non-judicial member of the Commission.

President means the President of the Commission.

Principal Act means the Industrial Arbitration Act 1940.

Registrar means the industrial registrar appointed under the Principal Act.

regulations means regulations under this Act.

superannuation scheme means a scheme, fund or arrangement under which any superannuation or retirement benefits are provided.

union means an industrial union registered as such under the Principal Act.

A reference in this Act to an employee or employer includes a reference to a person who was an employee or employer before the employment concerned was terminated.

For the purposes of this Act, an employer is a member of a group if—

the employer is, or

the employer would, but for section 79 (Exclusion of persons from groups) of the Payroll Tax Act 2007, be,

a member of the group for the purposes of that Act.

The regulations may make provision for or with respect to the exclusion of an employer from a group for the purposes of this Act.

In determining, for the purposes of this Act, the number of employees employed by an employer who is a member of a group, the employer shall be deemed to be the employer of all the employees of the members of the group.

Nothing in this Act affects or impliedly repeals any of the provisions of the Principal Act, or limits or affects in any way the jurisdiction of a person or body under the Principal Act in relation to any matter to which this Act applies or may apply.

Except where the contrary intention appears, the Principal Act shall have effect, and be construed, as if this Act formed part of the Principal Act.

After the repeal of the Principal Act, this Act continues to have effect and is to be construed subject to the Industrial Relations Act 1996.

In particular—

references in this Act are to be construed in accordance with clause 40 of Schedule 4 to the Industrial Relations Act 1996, and

references to agreements are to be construed as references to enterprise agreements within the meaning of that Act, except in section 14 (2) (b) and (3) of this Act where the references are to be construed as references to former industrial agreements.

Subject to section 9, an employer shall not terminate the employment of any employee unless the employer has, at least 7 days—

before notice of the termination is given to the employee, or

where notice of the termination is not given to the employee—before the termination of the employment,

served on the Registrar a notice of intention to terminate the employment.

Maximum penalty—50 penalty units.

A notice shall be deemed not to have been served for the purposes of subsection (1) unless it contains particulars of—

the name and address of the employee concerned,

the position occupied by the employee or the duties required to be performed by the employee,

the name of any relevant award or agreement applicable to the employee,

the name of any relevant union to which the employee belongs, if known to the employer,

any payments to be made to the employee in consequence of the termination of his or her employment,

the date on which the employee entered the employment of the employer or, if the employee has entered that employment on more than one occasion, the date on which the employee last entered that employment,

the date on or after which the termination of the employee’s employment is to take effect, and

such other matters as may be prescribed.

A notice under this section may also contain particulars of the financial and other resources of the employer concerned to which the employer would desire the Commission to have regard before making an order under this Act.

For the purposes of this section—

an award or agreement is not a relevant award or agreement, or

a union is not a relevant union,

unless the award or agreement, or membership of the union, is relevant to the position occupied by the employee concerned or to his or her duties as an employee.

A notice under this section may relate to one or more employees whose employment is proposed to be terminated.

This section does not apply—

in relation to—

the termination of an employee’s employment if the termination is made in consequence of misconduct on the part of the employee, or

the termination of casual employment, or

in such cases or classes of cases as are prescribed.

For the purposes of subsection (5), employment is casual employment if and only if—

it is, in accordance with the regulations, to be so treated, or

any award or agreement applicable to the employee concerned treats or classifies the employment as being casual employment.

Subject to section 9, where—

an employee—

is given notice of termination of his or her employment, or

his or her employment is terminated without notice, and

a notice of intention to terminate the employment has not been served on the Registrar under section 7,

the employer shall, not later than 7 days after the employee is given notice (as referred to in paragraph (a) (i)) or the employment is terminated without notice (as referred to in paragraph (a) (ii)), serve on the Registrar a written notice giving particulars of the reasons for the termination.

Maximum penalty—50 penalty units.

If the regulations so provide, a notice shall be deemed not to have been served for the purposes of subsection (1) unless it contains such particulars as may be prescribed.

This section does not apply—

in relation to the termination or proposed termination of employment of an employee unless, at the time of termination of the employment the employee has been, or will have been, continuously employed by the employer for at least 12 months ending at that time, or

in such cases or classes of cases as are prescribed.

Neither section 7 nor section 8 requires a notice to be served on the Registrar in relation to the termination or proposed termination of an employee’s employment if, immediately before the termination or proposed termination of employment, the employer employed fewer than 15 employees.

It is the duty of the Registrar, as soon as practicable after receiving a notice under section 7, to furnish such union or unions as the Registrar considers appropriate with a copy of the notice.

It is the duty of the Registrar, as soon as practicable after receiving a notice under section 7, to furnish the President with a report containing a copy of the notice and such other matters as the Registrar thinks appropriate.

Subject to any directions of the President, subsection (1) does not apply if the Registrar is of the opinion that the Commission would make no orders in consequence of the notice.

The Registrar may, of his or her own motion, furnish the President with a report where the Registrar is of the opinion that an employer has or may have contravened or failed to comply with this Act in any respect or that a notice under section 8 contains or may contain inadequate, false or misleading particulars.