The Fair Work Bill received Royal Assent on 7 April 2009. The Fair Work Act 2009 (the Act), including the unfair dismissal provisions, came into operation on 1 July 2009. The provisions dealing with Modern Awards and the commencement of the National Employment Standards will come into effect on 1 January 2010.
Outlined below are the changes made by The Act to the ways in which claims for unfair dismissal will be made.
From 1 July 2009, an employee who makes a claim for unfair dismissal must do so within 14 days of the date of dismissal.
To be protected from unfair dismissal, the Act provides that the employee must:
Be employed for the minimum employment period (6 months if there are 15 or more employees and 12 months if there are less than 15 employees in his/her workplace); and
Either:
Be covered by a Modern Award;
Be covered by a Collective Agreement; or
Earn less than the high income threshold which is currently $106,300 per annum exclusive of superannuation and have a legal contract.
There are exclusions for employees who are employed for a specified period or task; employed under a training arrangement; or demoted without significant reduction in duties or remuneration.
Fair Work Australia (FWA) will hear the applications. Until the Australian Industrial Relations Commission (AIRC) is completely phased out at the end of 2009, the AIRC and FWA will operate together. It is envisaged that any claims made before 1 July 2009 will remain with the AIRC and all claims lodged after 1 July 2009 will be heard by FWA. Appeals from AIRC decisions will be heard by FWA.
There are exemptions as follows:
The Act changes the position of small business employers. A small business is now defined as a business that employs less than 15 employees. The transitional arrangements for the Act provide that until 1 January 2011, the small business cut off will be determined as 15 full time equivalent employees. A straight head count will be used after that.
The Act does away with the distinction between probationary periods and qualifying periods. The Act provides that an employee must have been employed for at least 6 months (the minimum period of employment) to be entitled to make a claim for unfair dismissal.
The minimum period of employment is extended to 12 months for a small business employee, i.e. if employment is less than 12 months in a small business, there is no unfair dismissal claim!
Tags: legal contract