WorkSight Newsletter
December 2001

Casuals can claim unfair dismissal

The Federal Court recently handed down a decision that will have wide ramifications in businesses across Australia.

The Federal Court found that the regulations in the Workplace Relations Act that excluded casual employees with less than twelve months service from the unfair dismissal provisions were not valid.

The regulation had been drafted with the intention that only employees employed on a regular and systematic basis over a period of 12 months or more could access the unfair dismissal laws. The Court determined that this was not a valid interpretation of the legislation with the result that all casual employees employed for more than 3 months can apply for relief in relation to termination of employment.

Stop Press!

It is understood that the Government has now introduced legislation to ensure that casuals employed for less than 12 months are not covered by the unfair dismissal laws.

For further information on this contact WorkSight.

Reasonable hours test case

The ACTU has started its 'reasonable hours' test case in the Australian Industrial Relations Commission. The ACTU is seeking to establish an award benchmark for what is a reasonable level of hours worked and how they should be worked.

It does not propose a numerical limit on hours as this will vary by each industry and situation. However it does set out criteria that describe unreasonable hours of work.

Under the application, unions will seek to have factors such as an employee's safety, family responsibilities, workload and the number of hours worked over an extended period considered in determining reasonable hours of work.

The proposed clause also provides for additional leave for employees who work a large number of hours per week.

The hearings are expected to take two weeks and a decision from the Commission is expected next year.

Increases in expenses

Employers operating in industries that have a wide range of allowances payable to employees (eg in construction) should make sure they are paying the current award rates. Most allowances are increased as a result of the National Safety Net Review decision (which was made in May 2001).

Make sure you are paying the current rates or else you will find that not only will you have to increase the rates but you will also have to pay your employees back-pay to the date when the new rates came in.

Superannuation and travel allowances

After a long running case the Australian Industrial Relations Commission in October decided that travel allowances paid under the National Building & Construction Industry Award 2000 and the National Joinery & Building Trades Products Award 1993 should be included in the definition of 'ordinary time earnings'.

This means that superannuation would be calculated on the allowance as well as the hourly rate. In making this decision the Commission also decided that this would be backdated until 30 April 2001.

However since then the decision has been appealed and a stay has been placed on it. This means that it is not to be implemented until the appeal has been heard. Despite the stay the Commission has set down strict conditions on employers covered by these awards to ensure that the money will be available to pay the additional superannuation if the appeal is dismissed.

Any employer covered by these awards should contact WorkSight for further advice.

Unfair dismissal forms

When a dismissed employee lodges a claim of unfair dismissal in the Australian Industrial Relations Commission the employer is sent a form to complete prior to any hearing of the case. Apart from asking questions such as the contact details of the employer and the status of the employee, the form also asks whether there are any jurisdictional objections.

This means whether you think there are any grounds why the Commission should not hear the case. It lists the main reasons why a case might not be heard. For instance, the employee might have been employed on a fixed term contract or the employee was still on a probationary period. In these instances the Commission cannot take on the case, as employees in these positions are not entitled to take an action under the unfair dismissal laws.

By ticking the box saying that you do object on jurisdictional grounds (assuming you have good reason for saying this) the Commission will have to decide whether you are right or not.

A hearing will therefore first be held into whether there is jurisdiction for the Commission to act. This can mean that the employee's case is immediately rejected. It can also mean that you do not end up paying the employee compensation for the dismissal.

It is important to consider whether the dismissed employee has a right to take a case to the Commission as a first step as this may save you a lot of time and money. Read the form carefully and if you think they are not entitled to go to the Commission tick the box to show your concerns.