The Fair Work Bill introduces several other substantial changes. Most notably, there will be fewer exclusions from the unfair dismissal provisions. This means that there is an increased likelihood of unfair dismissal claims against businesses. In this regard, since 27 March 2006 it has not been possible to challenge the fairness of a dismissal if the dismissal was for reasons of an economic, technological, structural or similar nature. Consequently, employers have been largely exempt from facing challenges to the fairness of redundancies. The Fair Work Bill will dispense with the operational reason exclusion, and employers will be unable to use it to completely resist claims.
A new body known as Fair Work Australia will take over responsibility for handling unfair dismissal claims. A claim must be made within 7 days after the dismissal takes effect. Under current law, the period is 21 days. In some circumstances, Fair Work Australia will be able to exercise discretion to extend the period in which an application can be made.
Fair Work Australia will be able to take into account a variety of matters in considering the merits of a claim, notably:
The Fair Work Bill largely retains the existing unlawful termination provisions, but with some modifications to procedural rules. A termination is unlawful if the decision to terminate is based upon one or more of the prohibited reasons or if the termination is effected without satisfying the minimum period of notice. For example, it is unlawful to dismiss an employee for reason of physical disability, absence on paid sick leave, membership or non membership of a union, filing a complaint or participating in proceedings against the employer.
With respect to unfair dismissal, reinstatement will continue be an available remedy. Monetary compensation will also continue to be available, although it is subject to a maximum of 6 months' pay or half the amount of the high income threshold, whichever is lesser.
The National Employment Standards, due to take effect on 1 January 2010, will enshrine minimum severance payments and notice provisions in the event of redundancy. Of significance, the obligation to make severance payments will apply to all federal employers who employ 15 or more employees. The redundancy provisions contained within the National Employment Standards will be covered in more detail in a forthcoming article.
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