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Labour/employment law data for Australia (Victoria)

1. Is it a legal requirement that employees must receive an employment contract ? No - written employment contracts are not commonplace in Australia. Most employees receive a letter from a new employer confirming the starting date, salary and general duties - the balance of the contract terms would be implied by law. (Please note that in Australia there is state/ territory legislation, which is often similar but not uniform. The Workplace Relations Act (WRA), is a national Act and the main legislative framework for the unionised workforce. For the most part, unionised full-time employees, (and in the state of Victoria, employees earning less than AUS $81,500 per annum), are subject to this Act in relation to the termination of employment. Relief can be obtained from the Australian Industrial Relations Commission, which is not a court, and in the first instance it will resort to formal conciliation. If employees are not covered by the WRA their local state or territory laws apply and in Victoria this means the common law).
2. What factors constitute a fair dismissal i.e.legally justifiable reasons to terminate employment without the need to pay compensation? Employee must be given procedural fairness and the decision to dismiss must be based on the individual merits. A contract of employment, expressed or implied, will contain a minimum period of notice for termination of employment. If there is no express notice a 'reasonable notice' must be provided. Additionally, the WRA identifies that three clear warnings must be given if employment is to be terminated on the grounds of poor performance.
3. What is good practice with regard to dismissal procedures to minimise the risk of claims for unfair dismissal? A good employer keeps written records for each employee; if there is no written contract there should be a statement of the employees duties (for comparison in relation to performance issues); regular reviews of employment and memorandums of discussions, signed by the employee. Any warnings should be provided in writing.
4. If an employee is dismissed unfairly what is the financial range of compensation that can be made to employees? For employees covered by the WRA there are two kinds of relief:(a) reinstatement (which is very unusual and since employment is assumed to have been continuous, the employer is liable for wages since the dismissal).(b) Six months pay if the matter is litigated before the Australian Industrial Relations Commission (or unlimited if the matter proceeds to court).If the matter is litigated under common law compensation is usually related to the period of notice that should have been given.
5. Do employees have the right to be members of a trade union? Yes.For years there have been 'closed shop' practices in the building industry and in relation to metal workers. Strictly speaking freedom of association legislation has outlawed the practice, but for the most part employers will seek to avoid industrial disputes by adopting de facto 'closed shop' practices if the unions with which they deal are sufficiently powerful.
6. Is there any legal requirement for an employer to contribute to a pension for employees? Yes. A superannuation guarantee scheme was adopted on 1st July 1992. The amount of the employer's compulsory contribution varies, but is currently 9% of the employee's remuneration.
7. What are standard maternity rights? Employees' rights vary from state to state. In Victoria maternity leave is unpaid leave. Full time and part time (but not casual) employees are entitled to maternity leave of up to 52 weeks. Paid maternity leave is a topical issue and currently under discussion.
8. What are parental leave rights (including paternity leave)? There is an entitlement to paternity leave, which is unpaid.
9. When are employees eligible for redundancy payments? Redundancy is a complex issue in Australia. Unionised employees may receive an award - the entitlement will vary. Otherwise if redundancy is a ground for termination, employees may be eligible for compensation as outlined in (4) above.
10. What are the statutory redundancy payment limits? Not applicable.
11. Can existing employees be dismissed if you buy a business with employees? Yes. An employer selling their business is entitled to terminate employees - on the basis that the sale has made them redundant. The purchaser may then start new employment contracts. However, in practice many purchasers will take on the current employees and the financial and social terms will be dealt with by way of the business sale agreement.. However there is a Bill before parliament which if passed may affect this area.
12. Any other general legislation? Legislation prohibiting discrimination on certain grounds, such as disability, sex and sexuality. The states and territories also have their own similar legislation - although national legislation takes precedence. There are also 'working time regulations' particularly for the unionised workforce covered by awards.