| 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. |
