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The new dismissal laws introduced with the Federal Government’s Workplace Relations Amendment (WorkChoices) Act 2005 will impact all businesses. Under the new legislation a distinction is made between unlawful terminations and unfair dismissals.
Unlawful terminations
With the Government’s Work Choices Act the employee’s right to claim unlawful termination remains unchanged. It will be unlawful for an employer to terminate someone because of:
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Temporary absence from work because of illness or injury
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Trade union membership
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Non-membership of a trade union
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Seeking office as, or acting or having acted in the capacity of, a representative of employees
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The filing of a complaint, or the participation in proceedings, against an employer
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Race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin
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Refusing to negotiate, make, sign, extend, vary or terminate an Australian Workplace Agreement (AWA)
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Absence from work during maternity leave or other parental leave
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Temporary absence from work because of the carrying out of a voluntary emergency management activity.
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It will also be unlawful for anyone to apply duress to an employee in relation to negotiating and signing an AWA.
It will also be unlawful for anyone to apply duress to an employee in relation to negotiating and signing an AWA.
Unlawful termination claims are first heard before the Australian Industrial Relations Commission (AIRC). If conciliation fails in an unlawful termination case and a certificate is issued by the AIRC, the matter would go to the Federal Court of Australia, or in certain circumstances, another relevant court, for determination.
Employees who believe they have been unlawfully terminated will be eligible to receive up to $4000 worth of legal advice from the Government. Eligibility for this money will be based on the merits of the employee’s case, if they have a certificate from the AIRC, and if they are assessed as having a financial need.
Unfair dismissals
Under the new Act companies with 100 employees or less are exempt from the unfair dismissal laws. The unfair dismissal laws do apply for companies with more than 100 employees however they will need to have been with the company for more than six months before being eligible to make an unfair dismissal claim.
Redundancies
If an employee is made redundant they have no grounds to claim unfair dismissal however they may still be able to argue unlawful dismissal if they were discriminated against when being selected for the redundancy. If a redundancy is challenged, the employer would be required to go before the AIRC and show they had ‘genuine operational reasons’ for the redundancy to ensure that the unfair dismissal legislation applies.
Including award entitlements for redundancies in workplace agreements is also no longer mandatory. Businesses with 15 employees or less no longer need to pay redundancies where the award was set after
26 March 2004.
These new Federal laws supersede all state dismissal laws.
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