Subclass 457 visa employees may experience job insecurity during these uncertain economic times. If they are dismissed they face the challenges of finding another Australian employer to sponsor them within a very tight time frame and run the risk of repatriation where their visa is ultimately cancelled.
Depending on the circumstances of each case, these employees may have recourse to various legal remedies, which may assist them to either continue working in Australia or to recover adequate compensation for any damages that they may sustain, tiding them over until another sponsor is found. Some of these remedies are considered below.
Under the Rudd Government's new Fair Work Act 2009 ("FW Act") employers who seek to dismiss employees on the grounds of redundancy must first comply with certain requirements including pursuing reasonable redeployment alternatives (both within their own businesses and within any associated enterprise).
Failure to do so may entitle affected employees to bring unfair dismissal proceedings through a body known as Fair Work Australia ("FWA"). The benefits of doing so include the following:
• The process is cheap to institute;
• The proceedings are intended to be relatively quick and informal;
• FWA can order that the employee be reinstated or compensate the employee in respect of lost earnings;
• In the case of reinstatement, if the position that the employee had been engaged in no longer exists,
FWA may direct that the employee be engaged by an associated entity of the employer (e.g. a holding company/subsidiary company).
Redundancy pay entitlements
From January 1 2010, all national system employees in Australia who work for an employer that has 15 or more employees are eligible to receive redundancy pay (in addition to notice) if they are dismissed on the grounds of redundancy.
Generally, this entitlement arises after the first 12 months of service from January 1 2010 and ranges from four weeks' pay to a maximum of sixteen weeks' pay.
GEERS Redundancy Scheme
Employees who have lost their employment due to the liquidation or bankruptcy of their employer may recover some of their outstanding entitlements through the government's General Employee Entitlements and RedundancyScheme ("GEERS").
Misleading and deceptive conduct under the Trade Practices Act 1974
Some employers make promises or representations to a prospective employee, which ultimately turn out to be misleading or deceptive. Where this happens the employee may institute legal proceedings under the misleading and deceptive conduct provisions of the Trade Practices Act 1974 to recover resultant damages.
It is useful to keep file notes of all verbal representations made by a prospective employer which may not be reflected in the written employment agreement. These file notes have often been useful as evidence of misleading or deceptive conduct in subsequent legal proceedings.
Disclaimer: The information contained in this article is not legal advice and should not be relied upon as legal advice.
By Costa Brehas (B. Proc – University of the Witwatersrand, South Africa).
Costa practised as an attorney and conveyancer in South Africa and is currently engaged as a Senior Associate in the Employment and Workplace Relations department of Hunt & Hunt which has a national presence throughout Australia.