Academic journal article The Economic and Labour Relations Review : ELRR

Unfair Dismissal Law and Work Choices: From Safety Net Standard to Legal Privilege

Academic journal article The Economic and Labour Relations Review : ELRR

Unfair Dismissal Law and Work Choices: From Safety Net Standard to Legal Privilege

Article excerpt

Introduction

From the return of the Liberal/National Coalition to federal government in October 2004, it was clear that there would be major changes to the federal workplace relations system, including to the unfair dismissal scheme. No longer thwarted in the Senate, the government would be able to implement its full vision for, not only the federal unfair dismissal system, but the Australian-wide scheme regulating "harsh, unjust or unreasonable" termination of employment.

The Work Choices amendments, enacted through the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) ('Work Choices'), dramatically alter the Australian system of unfair dismissal law. A number of themes underlie these changes, with perhaps the strongest being that of contraction. The federal jurisdiction, and indeed the Australian jurisdiction regulating unfair dismissal, has been greatly constricted, most obviously in terms of coverage of employees. (1) Work Choices excludes many more employees throughout Australia from the ability to seek a review of their dismissal on the basis that it was "harsh, unjust or unreasonable". Protection against unfair dismissal has become an exclusive right, enjoyed by some, and only in some circumstances. It is now truly a privilege, and no longer a minimum employment standard of general application. (2) This theme of contraction is not new to the jurisdiction, and indeed has been present from June 1994, when the Keating Labor government first started to back away from the broad coverage it had put into place only three months earlier in the form of the Industrial Relations Reform Act 1993 (Cth) (Pittard 1995; Chapman 2003: 121-122). The policy objective of constriction was taken up with vigor, and became central in the jurisdiction, when the Liberal Coalition government took office federally in 1996. It now underlies many aspects of the Work Choices package, including most obviously, the exemption for corporate employers with up to 100 employees, the exemption relating to dismissals for operational reasons, the exemption of seasonal employees, the extension of the default qualifying period from three to six months, and the attempt to displace the State systems of unfair dismissal and unlawful termination. (3)

A second and related theme in the Work Choices provisions on unfair dismissal is to continue the move away from international labour standards, particularly ILO Convention 158 (Convention Concerning Termination of Employment at the Initiative of the Employer 1982). Australian law became closely tied to this ILO Convention through the enactment of the 1993 Industrial Relations Reform Act (McCallum 1994; Chapman 2003: 113-120). Since that time, Australian law has been successively positioned further and further away from the Convention standards, due in large part to the exemptions introduced into the federal legislative scheme over the years, by both the Labor government from 1994, and the Coalition government from 1996 (Chapman 2003). The raft of additional exemptions in Work Choices places Australia further out of compliance with ILO Convention 158, even though notably the government has not sought to break completely with the Convention, and it remains attached to the Workplace Relations Act 1996 (Cth) ("WR Act) as a Schedule.

This article examines the main amendments made by Work Choices to the federal unfair dismissal framework in the WR Act. Unlawful termination has been largely left alone, although there have been some changes there too, and these are briefly canvassed. (4) In this article unfair dismissal is used as shorthand to refer to the ability under s 643(1)(a) of the WR Act for an employee whose employment has been terminated by the employer to apply to the Australian Industrial Relations Commission ('Commission') for relief on-the ground that the termination was "harsh, unjust or unreasonable". Unlawful termination refers generally to the collection of rights contained in Subdivision C of Division 4, Part 12 of the WR Act. …

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