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Australia - Vías de recurso y procedimientos contenciosos en casos de litigios individuales
+ show references
- Fair Work Act 2009 [FWA], Act No. 28 of 2009, dated 7 April 2009 as amended up to Act No. 136 of 2011, 22 September 2012
Fecha: 22 Sep 2012; ver la pagina web
»
- Fair Work Regulations 2009 [FWR], Select Legislative Instrument 2009 No. 112 dated 18 June 2009, as amended up to to SLI 2012 No. 218, 15 September 2012
Fecha: 15 Sep 2012; ver la pagina web
»
- Small Business Fair Dismissal Code (2009) declared on 24 June 2009 pursuant to subsection 388(1) of the Fair Work Act 2009
Fecha: 24 Jun 2009; ver la pagina web
»
Compensación por despido injustificado - libre determinación de la Corte: No
Remarks: - See s392 FWA on Remedy - compensation
Compensación por despido injustificado - límites legales (techo calculado en meses o método de calculo)
:
Max. 26 weeks' salary or half the amount of the high income threshold [HIT]
(The HIT, which is indexed annually is currently $123,300 (July 2012) therefore the compensation cap is $61,650.)
NOTE: This information has changed since the previous period covered. Remarks: - New in July 2012:
As a result of the increase of the high income threshold (indexed annually), compensation cap has increased from $59,050 to $61,650.
s392 (5) and (6) FWA on Compensation cap
Compensation cap
"(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period - the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations."
Posibilidad de readmisión: Sí
Remarks: - s390 and s391 FWA.
s391 reads as follows:
"Reinstatement
(1) An order for a person's reinstatement must be an order that the person's employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person's employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal [...]"
Conciliación previa obligatoria: No
Remarks: - The FWA does not provide for mandatory conciliation. However, after an unfair dismissal application has been lodged, Fair Work Australia usually convenes a conciliation conference of the parties which is held by telephone with a conciliator from Fair Work Australia.
Corte o Tribunal competente
: tribunal del trabajo
Remarks: - Unfair dismissal disputes are decided by Fair Work Australia (which is the national workplace relations tribunal) (sec. 385, 390 FWA)
Note that general protections dismissal applications (see prohibited grounds) can be brought to FWA which may deal with the dismissal by mediation or conciliation, or by making a recommendation or expressing an opinion. However, if the dismissal remains unresolved, the applicant can then make an application to an ordinary court to deal with the matter.
A person cannot make a general protections dismissal application at the same time as an unfair dismissal application
Arbitraje: Sí
+ show references
- Fair Work Act 2009 [FWA], Act No. 28 of 2009, dated 7 April 2009 as amended up to Act No. 40 of 2011, 20 June 2011
Fecha: 20 Jun 2010; ver la pagina web
»
- Fair Work Regulations 2009 [FWR], Select Legislative Instrument 2009 No. 112 dated 18 June 2009, as amended up to to SLI 2011 No. 91, 21 June 2011
Fecha: 21 Jun 2011; ver la pagina web
»
- Small Business Fair Dismissal Code (2009) declared on 24 June 2009 pursuant to subsection 388(1) of the Fair Work Act 2009
Fecha: 24 Jun 2009; ver la pagina web
»
Compensación por despido injustificado - libre determinación de la Corte: No
Remarks: - See s392 FWA on Remedy - compensation
Compensación por despido injustificado - límites legales (techo calculado en meses o método de calculo)
:
Max. 26 weeks' salary or half the amount of the high income threshold [HIT]
(The HIT, which is indexed annually is currently $118,100 (July 2011) therefore the compensation cap is $59,050.)
NOTE: This information has changed since the previous period covered. Remarks: - New in July 2011:
As a result of the increase of the high income threshold (indexed annually), compensation cap has increased from $56,900 to $59,050.
s392 (5) and (6) FWA on Compensation cap
Compensation cap
"(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period - the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations."
Posibilidad de readmisión: Sí
Remarks: - s390 and s391 FWA.
s391 reads as follows:
"Reinstatement
(1) An order for a person's reinstatement must be an order that the person's employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person's employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal [...]"
Conciliación previa obligatoria: No
Remarks: - The FWA does not provide for mandatory conciliation. However, after an unfair dismissal application has been lodged, Fair Work Australia usually convenes a conciliation conference of the parties which is held by telephone with a conciliator from Fair Work Australia.
Corte o Tribunal competente
: tribunal del trabajo
Remarks: - Unfair dismissal disputes are decided by Fair Work Australia (which is the national workplace relations tribunal) (sec. 385, 390 FWA)
Note that general protections dismissal applications (see prohibited grounds) can be brought to FWA which may deal with the dismissal by mediation or conciliation, or by making a recommendation or expressing an opinion. However, if the dismissal remains unresolved, the applicant can then make an application to an ordinary court to deal with the matter.
A person cannot make a general protections dismissal application at the same time as an unfair dismissal application
Arbitraje: Sí
+ show references
- Fair Work Act 2009 [FWA], Act No. 28 of 2009, dated 7 April 2009 as amended up to the Freedom of Information Amendment (Reform)Act No. 51 of 2010, 31 May 2010
Fecha: 31 May 2010; ver la pagina web
»
- Fair Work Regulations 2009 [FWR], Select Legislative Instrument 2009 No. 112 dated 18 June 2009, as amended up to to SLI 2010 No. 99, 26 May 2010
Fecha: 14 Dec 2009; ver la pagina web
»
- Small Business Fair Dismissal Code (2009) declared on 24 June 2009 pursuant to subsection 388(1) of the Fair Work Act 2009
Fecha: 24 Jun 2009; ver la pagina web
»
Compensación por despido injustificado - libre determinación de la Corte: No
Remarks: - See s392 FWA on Remedy - compensation
Compensación por despido injustificado - límites legales (techo calculado en meses o método de calculo)
:
Max. 26 weeks' salary or half the amount of the high income threshold [HIT]
(The HIT, which is indexed annually is currently $113,800 (July 2010 - previously 108,300) therefore the compensation cap is $61,650 (previously $54150.)
Remarks: - s392 (5) and (6) FWA on Compensation cap
Compensation cap
"(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period - the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations."
Posibilidad de readmisión: Sí
Remarks: - s390 and s391 FWA.
s391 reads as follows:
"Reinstatement
(1) An order for a person's reinstatement must be an order that the person's employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person's employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal [...]"
Conciliación previa obligatoria: No
Remarks: - The FWA does not provide for mandatory conciliation. However, after an unfair dismissal application has been lodged, Fair Work Australia usually convenes a conciliation conference of the parties which is held by telephone with a conciliator from Fair Work Australia.
Corte o Tribunal competente
: tribunal del trabajo
Remarks: - Unfair dismissal disputes are decided by Fair Work Australia (which is the national workplace relations tribunal) (sec. 385, 390 FWA)
Note that general protections dismissal applications (see prohibited grounds) can be brought to FWA which may deal with the dismissal by mediation or conciliation, or by making a recommendation or expressing an opinion. However, if the dismissal remains unresolved, the applicant can then make an application to an ordinary court to deal with the matter.
A person cannot make a general protections dismissal application at the same time as an unfair dismissal application
Arbitraje: Sí
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