The current uncertain economic climate has seen a number of companies worldwide folding or downsizing. 2009 will therefore be a challenging year for many workers and in particular for prospective or recent migrants to Australia.
This article highlights basic entitlements and job protections which the Australian legal system provides and which could assist those workers whose jobs are at risk.
1. Entitlements on termination Notice
Upon termination, all employees (except for casuals) have an entitlement to receive notice, alternatively payment in lieu of notice. This period of notice ranges between 1 to 5 weeks depending on the employee's age and length of service.
Employees engaged under Common Law agreements would be entitled to any higher notice period contained in their agreement. If the agreement does not specify a notice period, these employees may argue that they are entitled to "reasonable" notice. In many cases the courts have determined that notice periods between 6 to 12 months would be reasonable and have ordered the employer to make payment of the equivalent wages for this period.
If the termination arises out of a redundancy, an additional entitlement to severance pay may arise depending on whether an Award or Workplace Agreement applies (see "What You Need To Know About Employment Down Under" in issue 9/2008 of this magazine). This additional severance pay entitlement is determined according to the employee's length of service and may be between 4 to 16 weeks.
Currently, Common Law employees have no automatic legal entitlement to severance pay in the event of a redundancy. This situation will, however, change with effect from 1 January 2010 when Federal legislation will be introduced giving all employees (except for casuals and other excluded employees) an entitlement to severance pay (again, based on their length of
2. Legal protections
Certain employees who are dismissed in circumstances that are considered to be harsh, unjust or unreasonable may bring unfair dismissal proceedings out of the Australian Industrial Relations Commission. These proceedings are relatively informal and are very cost effective because legal costs can only be awarded in very limited circumstances. If the employee is terminated on grounds that may be discriminatory, proceedings may be brought out of various State or Federal tribunals which are also relatively informal and cost effective.
My next article will discuss these legal protections in further detail.