Circular No 2003/7: Impact of amendments to the Workplace Relations Act 1996 on probation and termination of employment in the APS

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Note: This document has not been updated to reflect changes that may flow from the WorkChoices legislation enacted on 27 March 2006

The purpose of this circular is to advise agencies:

that the Workplace Relations Amendment (Fair Termination) Act 2003 (Fair Termination Act) has received Royal Assent and is expected to come into effect on 27 November 2003; and
that the APS Commission's booklets on probation and termination of employment are being reviewed in light of the new legislation.

Fair Termination legislation

2. The Fair Termination Act will:

move the existing exclusions from the termination of employment provisions in the Workplace Relations Regulations 1996 (Regulations) into the Workplace Relations Act (WR Act);
restore the exclusion of casual employees who are engaged for a short time from accessing the termination of employment remedies for unfair dismissal (this exclusion was previously invalidated by the Federal Court);
- the new provisions exclude a casual employee from access to unfair dismissal remedies where he/she has not been working on a regular and systematic basis for their employer for a sequence of periods of employment extending over a period of at least 12 months, and where the employee does not have a reasonable expectation of continuing employment with their employer;
prevent manipulation of the 12-month test by providing that, if an employer employs a person on a regular and systematic basis for less than 12 months and then re-engages the person within 3 months, as a result of which the total period of employment is more than 12 months, the casual exemption will not apply;
ensure that the employees excluded from the unfair dismissal provisions can make application for relief from unlawful termination on discriminatory grounds such as sex, race, colour, age or membership/non membership of a trade union;
clarify the previously confusing relationship between 'qualifying periods' and 'probation'.

Impact on probation

3. In the past, there has been confusion about the relationship between the 'qualifying period' in section 170CE of the WR Act and the exclusion for persons serving a 'period of probation or qualifying period' in Workplace Relations Regulation 30B.

4. Subsections 170CE(5A) and (5B) of the WR Act impose a qualifying period of 3 months (unless a shorter or longer period is agreed in writing) before an employee can access remedies for unfair dismissal. This provision has not been changed.

5. The new exclusion relating to probation in subsection 170CBA(1) of the WR Act removes the confusion by providing that where an employee:

is serving a period of probation; and
the period, or maximum period is determined in advance; and
is either 3 months or less or, if it is longer, is reasonable, having regard to the nature and circumstances of the employment;

the employee will not have access to remedies for unfair dismissal during the period of probation and will be excluded from some other provisions such as the minimum period of notice in section 170CM of the WR Act. However, as stated above, employees on probation will now have access to remedies for unlawful termination.

Further advice

6. General enquiries in relation to these matters can be directed to the APS Commission's Helpline on (02) 6202 3859.

Peter Miller
Acting Group Manager
Policy and Employment Group
13 November 2003