Submission 167 Australian Council of Trade Unions Workplace Relations Framework Public inquiry

Unlawful Termination

Supplementing the protections contained in Division 4, Part 3-1 of the FW Act is the separate protection from unlawful termination by reason of a temporary absence from work due to illness or injury contained in s352.

The operation of Division 4 of Part 3-1 of the FW Act is sufficiently broad to protect national system employees from unlawful termination due to a temporary absence due to illness or injury. For example, dismissal of an employee for reason of temporary absence due to illness or injury is likely to infringe upon an employee’s workplace rights as defined in s341 of the FW Act (the workplace right being found in State or Commonwealth workers compensation legislation preventing termination for a defined period).

However, s352 of the FW Act is based on a different constitutional footing to the Division 4 protections and its reach extends beyond just national system employers and their employees, as defined in the FW Act. This is because the unlawful termination provision in the FW Act precedes the endorsement by the High Court of the “corporations” power of the Constitution as the substantial basis for founding Commonwealth industrial laws, and is was originally founded on the “external affairs” power of the Commonwealth.⁶⁸⁰ The Explanatory Memorandum that accompanied the introduction of the Fair Work Bill 2008 states that the section is intended to “broadly cover paragraph 659(2)(a) of the WR Act”, which was repealed with the making of the FW Act.⁶⁸¹

Whilst the reach of the general protections (including unlawful termination related to temporary absence due to illness and injury) is extensive, the ACTU is concerned about a deficiency in the protection offered by s352 of the FW Act. That is, the combined operation of s352 and Regulation 3.01 (5) and (6) of the Fair Work Regulations 2009 works to remove protection from termination of employees of non-national system employers who are temporarily absent from work for a duration longer than 3 months in a 12 month period because of a workplace injury for which the employee receives workers compensation payments.

It appears that the rationale for this exclusion has to do with preserving the operation of State worker’s compensation systems in relation to the prohibitions against termination of employment of employees who have injured themselves at work. However, as discussed below, these State-based protections (with the exception of relevant provisions in NSW⁶⁸² and Qld⁶⁸³) are insufficient to provide employees with an effective remedy against unlawful termination (including access to appropriate interlocutory relief) which is available to employees of national system employers under the FW Act.⁶⁸⁴

All State workers compensations systems, to varying degrees, protect employees for a period from involuntary termination whilst in receipt of workers compensation payments, as the Table below shows:

Table : Injured Workers’ protection from involuntary termination

Jurisdiction	Legislation	Period of protection from termination
Victoria	Workplace Injury and Rehabilitation Act 2013, s103	52 weeks, but conditional
Western Australia	Workers Compensation and Injury Management Act 1981, ss84AA, 84AB	12 months
Queensland	Worker’s Compensation and Rehabilitation Act 2003, s232B	12 months
New South Wales	Workers Compensation Act 1987, s248	6 months or the duration of a relevant accident pay provision in a State or Commonwealth industrial instrument, whichever is longer
Tasmania	Workers Rehabilitation and Compensation Act 1988, s143L	12 months, but conditional
South Australia	Workers Rehabilitation and Compensation Act 1986, ss58B and 58C	Not defined period, but employer must give WorkCover Corporation 28 days notice of intention to terminate employment