Unfair Dismissal

No matter which side of the fence you sit on, you are bound to hold a passionate opinion about the changes to Australia’s industrial relations legislation.

One key aspect of the WorkChoices changes introduced in 2006 was the exemption to unfair dismissal legislation for workplaces employing less than 100 people.

The Australian Bureau of Statistics figures indicate nearly 4 million Australian workers are employed in businesses with fewer than 100 staff.  That’s a significant chunk of the Australian workforce.

Workers rights advocates argue that workers are now more vulnerable to exploitation by unprofessional or unethical employers.  The argument is that women in particular feel they have no alternative but to accept conditions imposed by the boss.

It is commonly suggested that it is women, young people and the low paid who are the most vulnerable under the reforms.

The Executive Director of Job Watch, Ms Zana Bytheway says “in the absence of unfair dismissal protection, women feel they receive lower wages and have less bargaining power”. 

Employers argue it frees them of the constraints and financial imposts of maintaining employment for staff they no longer require. For small businesses, where there is often a fine line between profit and loss, this approach is completely understandable.

Of course other legislation remains in place that prevents employers sacking workers on the basis of race, gender, age or disability.  Discrimination over religious belief, pregnancy or family responsibilities is also against the law. 

The true impact of the changes in legislation may not yet be apparent.  Australia is currently in the grip of a major skills shortage.  It is widely acknowledged to be a candidates market right now.  Workers can pick and chose between job offers from employers who are desperate to attract them.

More than a year after WorkChoices was introduced, the CEO of the Australian Industry Group, Heather Ridout, says that the reforms are defying the critics.

“When you look at employment, at industrial disputation and the strength and discipline of real wage growth, you would have to say that WorkChoices is delivering positive outcomes for Australia,” she says.

“There are clearly challenges for Government and business in communicating the benefits of the reforms. But the record speaks for itself and given the important advances that have been made it is vital that the reforms not be wound back.

“We would also repeat what we said to the Senate when the legislation was before Parliament - the impact of the reforms will not be fully appreciated for three to five years,”

But the Australian Council of Trade Unions is not taking the changes to industrial relations lying down.  The unionists believe that many of their hard-fought rights have been stripped from employment contracts.  Regardless of whether it’s an AWA, individual or collective agreement or industry award, the ACTU has garnered a groundswell of support from both main political camps for key worker rights to be reinstated.

The Australian Labor Party has declared one thing will be certain if it forms government.  A change of government will see the reintroduction of unfair dismissal laws for small business.  Employers need to be ready for possible changes ahead.

For any legal enquiries relating to HR, employment relations, or industrial relations, Sparke Helmore Lawyers has one of the largest team of experts in Australia. Contact a team member in your state on 1800 63 85 63.