Document ID: chunk:federal_register_of_legislation:C2004A01187:clause:1_170cba:p1
Version: federal_register_of_legislation:C2004A01187
Segment Type: clause
Provision Reference: sch 1 cl 170CBA (pt 1/3)
Character Range: 3604–6224

170CBA  Exclusions

Exclusions from Subdivisions B, D, E and F and sections 170CL and 170CM

 (1) The following kinds of employee are excluded from the operation of Subdivisions B, D, E and F and sections 170CL and 170CM:
 (a) an employee engaged under a contract of employment for a specified period of time;
 (b) an employee engaged under a contract of employment for a specified task;
 (c) an employee serving a period of probation, if the duration of the period or the maximum duration of the period, as the case may be, is determined in advance and, either:
 (i) the period, or the maximum duration, is 3 months or less; or
 (ii) the period, or the maximum duration:
 (A) is more than 3 months; and
 (B) is reasonable, having regard to the nature and circumstances of the employment;
 (d) a casual employee engaged for a short period, within the meaning of subsection (3);
 (e) a trainee whose employment under a traineeship agreement or an approved traineeship:
 (i) is for a specified period; or
 (ii) is, for any other reason, limited to the duration of the agreement;
 (f) an employee:
 (i) who is not employed under award conditions; and
 (ii) to whom subsection (5) or (6) applies.

Note 1: The expression employee engaged under a contract of employment for a specified period of time (used in paragraph (a)) has been addressed in a number of cases before the Industrial Relations Court of Australia, including, in particular, Cooper v Darwin Rugby League Inc (1994) 57 IR 238, Andersen v Umbakumba Community Council (1994) 126 ALR 121, D'Lima v Board of Management, Princess Margaret Hospital for Children (1995‑1996) 64 IR 19 and Fisher v Edith Cowan University (unreported judgment of Madgwick J, 12 November 1996, No. WI 1061 of 1996).

Note 2: An employee who is excluded from the provisions of the Act specified in this subsection may still be eligible to apply for a remedy in relation to the termination of employment under a State law.

Note 3: The definitions in section 170CD apply for the purposes of this section.

 (2) Subsection (1) does not apply to an employee engaged under a contract of a kind mentioned in paragraph (1)(a) or (b) if a substantial purpose of the engagement of the employee under a contract of that kind is, or was at the time of the employee's engagement, to avoid the employer's obligations under Subdivision B, D or E or section 170CL or 170CM.

 (3) For the purpose of paragraph (1)(d), a casual employee is taken to be engaged for a short period unless:
 (a) subject to subsection (3A)—the employee is engaged by a particular employer on a regular and systematic basis