Introduction
After being endorsed through the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (‘Work Choices’), radical changes have been made to the Australian systems. Work Choices legislation is primarily based on the corporations’ power in the Constitution; thus these amendments will primarily apply to employees engaged by ‘constitutional corporations’, see Dazmany Pty Ltd v Thorn (1997) 74 IR 182; (Price, 2007).
Unfair dismissal within the Workplace Relations Act as defined by the Australian Industrial Relations Commission (AIRC) refers to employment that has been terminated on grounds that termination was “harsh, unjust or unreasonable”. The Act states that the unfair dismissal provisions apply in relation to the termination of employment of an “employee” defined in s 5(1) (s 637(1)) and the concept of “employer” defined in s 6(1).
Discussion
2.1. Pre Work Choices
Unfair dismissal is about harsh dismissal and is actionable via legislation, awards and agreements (Waarden, 2004), this is based on the Workplace Relations Act (WRA) (1996). The AIRC assess factors to what amounts to unfair dismissal (( b) Cantanzariti, 2006). The unfair dismissal provision of the WRA (1996) protects employees under the federal award, except contract workers, probationary employees (less than three months of employment), casuals (with less than twelve months employment), trainees and higher income earners ($90, 400 per annum) (WRA, s 43(3)). Employees who were employed in businesses with 25 employees or less were not allowed to claim under this provision. Redundancy provisions in awards and the ‘No Disadvantage’ test were also available. Even retrenched employees were able to make claims on the basis that the severance benefits provided to them were below the industrial norms (Creighton and Stewart 2005: [16.67]-[16.68]).
2.2. Post Work Choices
Work Choices made some major ammendments on the unfair dismissal provision in several ways. Constitutions with 100 employees or fewer are excluded from the unfair dismissal provision.This applies to seasonal employees too; and the qualifying period has been extended. Employees from corporations regardless of workforce size; cannot bring an unfair dismissal claim against the employer if the termination is of genuine operational reasons. Removal of the ‘No Disadvantage’ test will also limit the grounds of what the employees can rely on to bring about such claims. Lastly, remedies available now are mostly compensation instead of reinstatement.
2.2.1. Key Reforms
2.2.1.1. 100 – Employee Cap
(a)Cantanzarti (2006) states that an employee cannot make an unfair dismissal claim if engaged by a corporation that employed 100 employees or fewer at the ‘relevant time’: see ss 639(1)(b)(ii), 643(12)(a) and 643(10).
It seems that the major issue here is whether or not one can use age as a factor in terms of discrimination when the discrimination was not intentional. If for example it turns out that the people who are laid off are over the age of 40, even though no malicious intent is discovered, it still may be construed as age discrimination. This issue has been somewhat controversial for some time, as most litigants in age discrimination lawsuits realize that they ...
Constructive discharge, or constructive dismissal, means that the employee resigned from their position as a result of the employer creating an intolerable and difficult environment. Constructive discharge is viewed as the employee being pressured to quit due to the employer making changes to the working conditions or responsibilities, but from a legal position, the employee quit due to forced termination, or fired without good cause. ("TimsLaw.com » Constructive Discharge - Being forced to quit - Tim 's Missouri Employment Law Info Site," n.d.)
There was evidence shown that the unfair dismissal requirements were the furthermost conflicting and inconsistent from the manager’s perspective. The Fair Work Act applied unfair dismissal requirements for entirely workers, regardless of the population of workers in the business (Chapman, 2015). The Fair Work Act presents two cases that dismissal could be reasonable, including other dismissal and summary dismissal. In the first case, the law offers a sequence of stages such as concluded checklist, copies of notice, declaration of dismissal and a witness announcement with signature that managers must follow with the intention to reduce the problem (Chapman, 2015). In the second case, managers may dismiss a worker without notice due to theft or fraud. As the consequence, the amount of cases in relation to unfair dismissal has risen significantly since the Fair Work Act implemented as law. In addition to the growing records of cases in relation to unfair dismissal, the judgements from Fair Work Australia showed some contradicting clarifications of the Fair Work Act (Chapman, 2015). According to an example, a business in Albury- Wodonga had dismissed an employee due to the breach of occupational and safety laws after an employee continually denied to wear safety glasses at work (Sloan, 2011). However, after checking the worker’s reinstatement, the Fair Work Australia stated that the worker had a family and he has found it challenging to
Marshall, Shelley, 2004. Enterprise Bargaining, Managerial Prerogative and the Protection of Workers Rights. An Argument on the Role of Law and Regulatory Strategy in Australia under the Workplace Relations Act 199, Vol.22(3), , p.299.
[12] CURRAN, Simon, ‘When is a duck not a duck? The employee/independent contractor dichotomy’, Bulletin (Law Society of S.A) 26 (9) October 200etin (Law Society of S.A) 26 (9) October 2004: 23-26
The Age Discrimination Act states that it is prohibited for employers and others to discriminate against an individual on the grounds of their age. This act protects all individuals of all ages against this kind of discrimination. An example this type of discrimination is an experienced and successful senior nurse who is only 40 is fired because the NHS board feel that she is becoming too old for the job and think that someone a few years younger maybe more preferable, so they decide to fire the senior nurse. This is indirect discrimination, where the individual is unaware that they were discriminate against because of their age. The NHS board did not take in to account the senior nurse’s skill, experience or how well she could cope with the job. All they took into account was her age. This act prevents discrimination as if the NHS board followed the rules of the age discrimination act then th...
Ferguson, J. (1997), Casual Employment Contracts: Continuing Confusion when Protection and Free Market Clash, New Zealand Journal of Industrial Relations, 22(1): 123-142
...e Bargaining, Managerial Prerogative and the Protection of Workers Rights: An Argument on the Role of the Law and Regulatory Strategy in Australia under the Workplace Act 1996 (Cth). Retrieved on April 9, 2013, from http://www.google.co.ke/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&ved=0CDAQFjAA&url=http%3A%2F%2Fwww.law.unimelb.edu.au%2FE8812500-7599-11E2-84E10050568D0140&ei=t0RkUdT0K62V7Ab48IC4Bw&usg=AFQjCNEfV17R8n5eNatsPXKQRxB9bqvUig&bvm=bv.44990110,d.ZGU.
to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s...
United States of America. National Employment Law Project. National Employment Law Project. N.p., Jan. 2011. Web. 18 May 2014.
..., (21 and over). The Employment Rights Act of 1996 has included benefits UK’s citizens with four weeks paid yearly leave, sick pay, maternity and father leave. All employees are legally entitled to 5.6 weeks paid holiday time per year. All employers are responsible of their employee’s health and safety care. Adults are limited to 48 hours per week of work. Direct/indirect discrimination or harassment is not tolerated as well as favoritism. Age, disability, sexual orientation, race, religion, etc. are all factors. The UK is in progress for a plan of terminations.
Section 188 of the Act (Labour Relations Act) stipulates that a dismissal is unfair if the employer fails to prove that the reason for the dismissal is a fair reason based on the misconduct or incapacity of the employee, or is based on the employer's operational requirements, and that the dismissal was effected in accordance with a fair procedure. Persons or Employers considering whether or not the reason for dismissal is of fair reason is in accordance with fair procedure must take into account any relevant Code of Good Practice issued in terms of Schedule 8 of the Act – as discussed here-in:
During the court, P4P issued the Decision Letter (No.660/48/17-10/IX/PHK/4-1999) that the defendant was not allowed to dismiss their employees. The reason was because there was not agreement between the defendant and the 153 employees. The defendant refused that Decision Letter because that would cause the defendant should give the job to the employees back and should pay their wage.
Managers have a degree of choice in how they deal with their employees. (Purcell, 1987) Some may see them as a commodity while others may see them as an important and valuable resource needing to be developed. (Purcell, 1987) Managerial prerogative is defined by Bray, Waring and Cooper (2011: pg 332) as “those areas of decision-making within an organization over which managers claim to have an unfettered right to decide as they see fit.” It is important to define managerial prerogative so that we can establish whether the legislation has increased or diminished it. Defining managerial prerogative is also important as we look at the different managerial styles and strategies and observe if they play any role in increasing or minimizing managerial prerogative. Managers will always have some degree of control over their employees because most of the day to day tasks in the workplace such as rules and procedures of the workplace, tasks, and which employee performs which tasks are decisions made by the manager without consultation with employees and unions. (Bray, Waring and Cooper, 2011) The laws and regulations surrounding managerial prerogative have only seemed to rule in favour of employers being the sole decision makers in an organisation and decrease the amount of bargaining power unions and employees have towards pay and conditions. (Bray and Waring, 2006)
The theory holds work to be governed by a wide range of formal and informal rules and regulations, which cover everything from recruitment, holidays, performance, wages, hours, and a myriad of other details of employment. It asserts that these rules are what industrial actors try to determine, that their establishment is influenced by the wider environmental context in which the actors operate, and that the actors themselves share an interest in maintaining the processes of negotiation and conflict resolution. On the back of these assertions four elements are held to make up the system of industrial relations rule-making. The first is industrial actors, which consists of employers and their representatives (i.e., employer associations), employees and their representatives (i.e., trade unions), and external agencies with an interest in industrial relations (i.e., government departments and labour courts). The second is the environmental context, which