Employment Law

The Federal Government has announced widespread modifications to the Australian workplace relations program, by relying upon 1 of the heads of power under the Australian Constitution, namely the Corporations Power. This enables them to make laws with respect to Australian firms including constitutional corporations. It is their stated desire to have 1 set of laws governing workplace relations for the whole of Australia. Effectively where this is not possible the Australian Government wishes to see the states freely give up their powers in this region and refer them to them. This legislation deals with fair pay, workplace agreements, termination of employment, the function of a variety of institutions, strike action, award simplification, further limits on union power, the rules governing entitlements of employees on transmission of enterprise and the role of workplace inspectors.

Previously the location of employment law and a lot more especially that of unfair dismissal was governed in NSW by both the NSW Industrial Relations Act and the Federal Workplace Relations Act. In summary, remedies accessible under both Acts are virtually identical in respect of unfair dismissal, constructive dismissal and unlawful termination. One of the key differences was where claims were brought under section 106 of the NSW Industrial Relations Act which allowed for unfair contract claims to be brought in circumstances similar to those which existed for unfair dismissal. In January 2005 there was a key alter made to the Federal Workplace Relations Act which brought into play new sections which deal with the rights of independent subcontractors to bring claims based on unfair contracts.

The vital distinction was that section 106 dealt with strict employment contracts whereas the Federal Workplace Relations Act only provided protection to independent contractors. As of 27 March 2006 there has been a fundamental change with the new Workchoices legislation coming into effect. Companies with up to 100 workers will be exempt from unfair dismissal claims whereas bigger businesses will not. That said, bigger businesses are afforded a greater protection due to the extension of the probationary period for new workers from three to six months. This offers these bigger corporations with the chance to get to know their employees much better just before deciding regardless of whether to maintain them or not. Employees terminated during this period will not be able to bring unfair dismissal claims even where they have been produced redundant. Constructive dismissal claims are accessible in quite limited circumstances and unlawful termination claims remain which includes discrimination on the basis of race, colour, sex, pregnancy and disability.

In Victoria the Kennett Government referred its power in the Industrial Relations environment to the Federal Government some years ago. In brief all Victorian and territory businesses are covered under the new system since of this referral and not due to the fact the Federal Government is relying upon the corporation’s power. All employees of constitutional corporations are covered by the program such as all corporate companies in all other states. According to the Federal Government roughly 85% of all companies will be picked up though there is agitation by a number of state governments to avoid this occurring. There is little doubt that all unincorporated businesses will fall outside the system because they are not corporations.

Although these changes are supposed to lead to a simplification of the method this has not in fact occurred. There is a dual program operating both federally and within some states. Though corporations will be picked up, sole traders, partnerships and trusts will not, which includes doctors, farmers and some sporting groups to name but a few. In some situations the disenfranchised will be in a position to bring actions for breach of their employment contract and possibly under the Trade Practices Act. All employees, irrespective of size of the company will no longer have the chance to plead that they have been unfairly treated and selected for redundancy.