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Australia - Source and scope of regulations



References
  • Fair Work Act 2009 [FWA], Act No. 28 of 2009, dated 7 April 2009 as amended up to Act No. 180 of 2018, 12 December 2018
    Date: 12 Dec 2018; view website »
  • Fair Work Regulations 2009 [FWR], Select Legislative Instrument 2009 No. 112 dated 18 June 2009, as amended up to the “Fair Work Amendment (Casual Loading Offset) Regulations“ 2018, 18 December 2018
    Date: 18 Dec 2018; view website »
  • Small Business Fair Dismissal Code (2009) declared on 24 June 2009 pursuant to subsection 388(1) of the Fair Work Act 2009
    Date: 24 Jun 2009; view website »
Scope
Size of enterprises excluded (≤): 15
Remarks:
  • Although there is no general exclusion based on the size of the enterprise in the FWA, there are however some exemptions or specific requirements pertaining to dismissal in businesses with less than 15 employees (referred to in the Act as "small business employer": s23 FWA).
    1) Small business employers are excluded from the obligation to pay redundancy pay (s121(1)b) FWA)
    2) In addition, small business employees cannot make a claim for unfair dismissal in the first 12 months following their engagement, whereas protection against unfair dismissal applies after 6 months of employment in businesses with 15 or more employees.
    3) After the 12-month-period of employment, small business employers must observe the requirements set out in the Small Business Fair Dismissal Code in order to dismiss an employee. If the employer follows the Code, then the dismissal will be deemed to be fair.

    It is worth noting that under the former legislation, there was a broader exemption related to the size of the employer's workforce. According to s643 (Workplace Relations Act), claims of unfair dismissal were not available to employees working for an employer with 100 or fewer employees.

Workers' categories excluded: non-federally regulated workers
Remarks:
  • The scope of application of the FWA differs in the various parts of the Act. 'Employee' and 'employer' are either given 'their ordinary meaning' or most frequently refer to 'national system employees' or 'national system employer'.
    The main provisions on dismissal apply only to national system employees (i.e Part 3-2 on Unfair Dismissal, redundancy pay and notice of termination provisions).

    The definition of national system employees and employers is provided in s14 and 15 FWA.
    Employees covered by the national workplace relations system include those:
    - employed by a constitutional corporation (these are corporations that are trading or financial, usually Pty Ltd or Ltd companies)
    - employed by the Commonwealth or a Commonwealth authority
    - employed in Victoria, the Northern Territory or the Australian Capital Territory
    - a flight crew officer, a maritime employee, a waterside employee, employed in connection with interstate or overseas trade or commerce.

    The Act has also foreseen a referral mechanism (sec. 30A to 30R) enabling states to join the national system rather than keeping their own specific system.

    Since 1 January 2010, sole traders, partnerships, other unincorporated entities and non-trading corporations in New South Wales, Queensland, South Australia and Tasmania have joined the national system.
    All private sector employers in the New South Wales, Queensland, South Australian, Tasmanian system are therefore covered by the national system since 1 January 2010.
    The Western Australian government has chosen not to join the national system.

    Consequently, the following employees are not covered by those provisions of the FWA which only applies to national system employees:
    - Employees in state public sector and local government employees in New South Wales, Queensland, South Australia and Tasmania and Western Australia are not covered by the national system and remain under their respective state system.
    - Western Australian corporations whose main activity is not trading or financial.
    - Western Australian sole traders, partnerships, or other unincorporated entities.

    With regards to protection against unfair dismissal, according to s382, a national system employee is protected from unfair dismissal and is therefore eligible to make an application for unfair dismissal if he or she has completed 'the minimum employment period'. In addition to having completed the minimum employment period, s382 provides that one of the following conditions shall be fulfilled:
    "(i) a modern award covers the person;
    (ii) an enterprise agreement applies to the person in relation to the employment;
    (iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold"[which from 1 July 2009 is $108,300, indexed annually – from 1 July 2018, the indexed threshold amount is $145,400]
    .

    In addition, there are specific exclusions attached to a number of dismissals requirements. Such exclusions, generally based on the nature of the employment relationship, have been indicated under the relevant item (i.e redundancy pay, notice of termination...).

    On "who is covered by the national system", see the website "The Fair Work System":
    https://www.fairwork.gov.au/about-us/legislation/the-fair-work-system


Reforms under process
The Fair Work Act 2009 provides the legislative framework for workplace relations in Australia. It replaces the former "Work Choices legislation (Workplace Relations Act 1996 as last amended in 2005).
While most provisions of the Act (including those on unfair dismissal) entered into force on 1 July 2009, it is only since 1 January 2010 that it became fully applicable with the entry into force of the provisions relating to Modern Awards and National Employment Standards.
The Small Business Fair Dismissal Code (applicable to the employers with less than 15 full-time equivalent employees) came into operation on 1 July 2009



References
  • Fair Work Act 2009 [FWA], Act No. 28 of 2009, dated 7 April 2009 as amended up to Act No. 180 of 2018, 12 December 2018
    Date: 17 Nov 2016; view website »
  • Fair Work Regulations 2009 [FWR], Select Legislative Instrument 2009 No. 112 dated 18 June 2009, as amended up to the “Fair Work Amendment (Casual Loading Offset) Regulations“ 2018, 18 December 2018
    Date: 01 Jul 2017; view website »
  • Small Business Fair Dismissal Code (2009) declared on 24 June 2009 pursuant to subsection 388(1) of the Fair Work Act 2009
    Date: 24 Jun 2009; view website »
Scope
Size of enterprises excluded (≤): 15
Remarks:
  • Although there is no general exclusion based on the size of the enterprise in the FWA, there are however some exemptions or specific requirements pertaining to dismissal in businesses with less than 15 employees (referred to in the Act as "small business employer": s23 FWA).
    1) Small business employers are excluded from the obligation to pay redundancy pay (s121(1)b) FWA)
    2) In addition, small business employees cannot make a claim for unfair dismissal in the first 12 months following their engagement, whereas protection against unfair dismissal applies after 6 months of employment in businesses with 15 or more employees.
    3) After the 12-month-period of employment, small business employers must observe the requirements set out in the Small Business Fair Dismissal Code in order to dismiss an employee. If the employer follows the Code, then the dismissal will be deemed to be fair.

    It is worth noting that under the former legislation, there was a broader exemption related to the size of the employer's workforce. According to s643 (Workplace Relations Act), claims of unfair dismissal were not available to employees working for an employer with 100 or fewer employees.

Workers' categories excluded: non-federally regulated workers
Remarks:
  • The scope of application of the FWA differs in the various parts of the Act. 'Employee' and 'employer' are either given 'their ordinary meaning' or most frequently refer to 'national system employees' or 'national system employer'.
    The main provisions on dismissal apply only to national system employees (i.e Part 3-2 on Unfair Dismissal, redundancy pay and notice of termination provisions).

    The definition of national system employees and employers is provided in s14 and 15 FWA.
    Employees covered by the national workplace relations system include those:
    - employed by a constitutional corporation (these are corporations that are trading or financial, usually Pty Ltd or Ltd companies)
    - employed by the Commonwealth or a Commonwealth authority
    - employed in Victoria, the Northern Territory or the Australian Capital Territory
    - a flight crew officer, a maritime employee, a waterside employee, employed in connection with interstate or overseas trade or commerce.

    The Act has also foreseen a referral mechanism (sec. 30A to 30R) enabling states to join the national system rather than keeping their own specific system.

    Since 1 January 2010, sole traders, partnerships, other unincorporated entities and non-trading corporations in New South Wales, Queensland, South Australia and Tasmania have joined the national system.
    All private sector employers in the New South Wales, Queensland, South Australian, Tasmanian system are therefore covered by the national system since 1 January 2010.
    The Western Australian government has chosen not to join the national system.

    Consequently, the following employees are not covered by those provisions of the FWA which only applies to national system employees:
    - Employees in state public sector and local government employees in New South Wales, Queensland, South Australia and Tasmania and Western Australia are not covered by the national system and remain under their respective state system.
    - Western Australian corporations whose main activity is not trading or financial.
    - Western Australian sole traders, partnerships, or other unincorporated entities.

    With regards to protection against unfair dismissal, according to s382, a national system employee is protected from unfair dismissal and is therefore eligible to make an application for unfair dismissal if he or she has completed 'the minimum employment period'. In addition to having completed the minimum employment period, s382 provides that one of the following conditions shall be fulfilled:
    "(i) a modern award covers the person;
    (ii) an enterprise agreement applies to the person in relation to the employment;
    (iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold"[which from 1 July 2009 is $108,300, indexed annually – from 1 July 2018, the indexed threshold amount is $145,400]
    .

    In addition, there are specific exclusions attached to a number of dismissals requirements. Such exclusions, generally based on the nature of the employment relationship, have been indicated under the relevant item (i.e redundancy pay, notice of termination...).

    On "who is covered by the national system", see the website "The Fair Work System":
    https://www.fairwork.gov.au/about-us/legislation/the-fair-work-system


Reforms under process
The Fair Work Act 2009 provides the legislative framework for workplace relations in Australia. It replaces the former "Work Choices legislation (Workplace Relations Act 1996 as last amended in 2005).
While most provisions of the Act (including those on unfair dismissal) entered into force on 1 July 2009, it is only since 1 January 2010 that it became fully applicable with the entry into force of the provisions relating to Modern Awards and National Employment Standards.
The Small Business Fair Dismissal Code (applicable to the employers with less than 15 full-time equivalent employees) came into operation on 1 July 2009



References
NOTE: This information has changed since the previous period covered.
  • Fair Work Act 2009 [FWA], Act No. 28 of 2009, dated 7 April 2009 as amended up to Act No. 79 of 2016, 17 November 2016
    Date: 17 Nov 2016; view website »
  • Fair Work Regulations 2009 [FWR], Select Legislative Instrument 2009 No. 112 dated 18 June 2009, as amended up the “ Fair Work and Other Legislation Amendment (South Australian Employment Court) Regulations “ 2017, 1 July 2017
    Date: 01 Jul 2017; view website »
  • Small Business Fair Dismissal Code (2009) declared on 24 June 2009 pursuant to subsection 388(1) of the Fair Work Act 2009
    Date: 24 Jun 2009; view website »
Scope
Size of enterprises excluded (≤): 15
Remarks:
  • Although there is no general exclusion based on the size of the enterprise in the FWA, there are however some exemptions or specific requirements pertaining to dismissal in businesses with less than 15 employees (referred to in the Act as "small business employer": s23 FWA).
    1) Small business employers are excluded from the obligation to pay redundancy pay (s121(1)b) FWA)
    2) In addition, small business employees cannot make a claim for unfair dismissal in the first 12 months following their engagement, whereas protection against unfair dismissal applies after 6 months of employment in businesses with 15 or more employees.
    3) After the 12-month-period of employment, small business employers must observe the requirements set out in the Small Business Code in order to dismiss an employee. If the employer follows the Code, then the dismissal will be deemed to be fair.

    It is worth noting that under the former legislation, there was a broader exemption related to the size of the employer's workforce. According to s643 (Workplace Relations Act), claims of unfair dismissal were not available to employees working for an employer with 100 or fewer employees.

Workers' categories excluded: non-federally regulated workers
Remarks:
  • The scope of application of the FWA differs in the various parts of the Act. 'Employee' and 'employer' are either given 'their ordinary meaning' or most frequently refer to 'national system employees' or 'national system employer'.
    The main provisions on dismissal apply only to national system employees (i.e Part 3-2 on Unfair Dismissal, redundancy pay and notice of termination provisions).

    The definition of national system employees and employers is provided in s14 and 15 FWA.
    Employees covered by the national workplace relations system include those:
    - employed by a constitutional corporation (these are corporations that are trading or financial, usually Pty Ltd or Ltd companies)
    - employed by the Commonwealth or a Commonwealth authority
    - employed in Victoria, the Northern Territory or the Australian Capital Territory
    - a flight crew officer, a maritime employee, a waterside employee, employed in connection with interstate or overseas trade or commerce.

    The Act has also foreseen a referral mechanism (sec. 30A to 30R) enabling states to join the national system rather than keeping their own specific system.

    Since 1 January 2010, sole traders, partnerships, other unincorporated entities and non-trading corporations in New South Wales, Queensland, South Australia and Tasmania have joined the national system.
    All private sector employers in the New South Wales, Queensland, South Australian, Tasmanian system are therefore covered by the national system since 1 January 2010.
    The Western Australian government has chosen not to join the national system.

    Consequently, the following employees are not covered by those provisions of the FWA which only applies to national system employees:
    - Employees in state public sector and local government employees in New South Wales, Queensland, South Australia and Tasmania and Western Australia are not covered by the national system and remain under their respective state system.
    - Western Australian corporations whose main activity is not trading or financial.
    - Western Australian sole traders, partnerships, or other unincorporated entities.

    With regards to protection against unfair dismissal, according to s382, a national system employee is protected from unfair dismissal and is therefore eligible to make an application for unfair dismissal if he or she has completed 'the minimum employment period'. In addition to having completed the minimum employment period, s382 provides that one of the following conditions shall be fulfilled:
    "(i) a modern award covers the person;
    (ii) an enterprise agreement applies to the person in relation to the employment;
    (iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold"[which from 1 July 2009 is $108,300, indexed annually]
    .

    In addition, there are specific exclusions attached to a number of dismissals requirements. Such exclusions, generally based on the nature of the employment relationship, have been indicated under the relevant item (i.e redundancy pay, notice of termination...).

    On "who is covered by the national system", see the website "Fair Work Online":
    http://www.fairwork.gov.au/Things-everyone-should-know/Pages/Who-is-covered-by-the-national-system.aspx?role=employees


Reforms under process
The Fair Work Act 2009 provides the new legislative framework for workplace relations in Australia. It replaces the former "Work Choices legislation (Workplace Relations Act 1996 as last amended in 2005).
While most provisions of the Act (including those on unfair dismissal) entered into force on 1 July 2009, it is only since 1 January 2010 that it became fully applicable with the entry into force of the provisions relating to Modern Awards and National Employment Standards.
The Small Business Fair Dismissal Code (applicable to the employers with less than 15 full-time equivalent employees) came into operation on 1 July 2009



References
NOTE: This information has changed since the previous period covered.
  • Fair Work Act 2009 [FWA], Act No. 28 of 2009, dated 7 April 2009 as amended up to Act No. 79 of 2016, 17 November 2016
    Date: 17 Nov 2016; view website »
  • Fair Work Regulations 2009 [FWR], Select Legislative Instrument 2009 No. 112 dated 18 June 2009, as amended up to SLI No. 95 of 2014, 1 July 2014
    Date: 01 Jul 2014; view website »
  • Small Business Fair Dismissal Code (2009) declared on 24 June 2009 pursuant to subsection 388(1) of the Fair Work Act 2009
    Date: 24 Jun 2009; view website »
Scope
Size of enterprises excluded (≤): 15
Remarks:
  • Although there is no general exclusion based on the size of the enterprise in the FWA, there are however some exemptions or specific requirements pertaining to dismissal in businesses with less than 15 employees (referred to in the Act as "small business employer": s23 FWA).
    1) Small business employers are excluded from the obligation to pay redundancy pay (s121(1)b) FWA)
    2) In addition, small business employees cannot make a claim for unfair dismissal in the first 12 months following their engagement, whereas protection against unfair dismissal applies after 6 months of employment in businesses with 15 or more employees.
    3) After the 12-month-period of employment, small business employers must observe the requirements set out in the Small Business Code in order to dismiss an employee. If the employer follows the Code, then the dismissal will be deemed to be fair.

    It is worth noting that under the former legislation, there was a broader exemption related to the size of the employer's workforce. According to s643 (Workplace Relations Act), claims of unfair dismissal were not available to employees working for an employer with 100 or fewer employees.

Workers' categories excluded: non-federally regulated workers
Remarks:
  • The scope of application of the FWA differs in the various parts of the Act. 'Employee' and 'employer' are either given 'their ordinary meaning' or most frequently refer to 'national system employees' or 'national system employer'.
    The main provisions on dismissal apply only to national system employees (i.e Part 3-2 on Unfair Dismissal, redundancy pay and notice of termination provisions).

    The definition of national system employees and employers is provided in s14 and 15 FWA.
    Employees covered by the national workplace relations system include those:
    - employed by a constitutional corporation (these are corporations that are trading or financial, usually Pty Ltd or Ltd companies)
    - employed by the Commonwealth or a Commonwealth authority
    - employed in Victoria, the Northern Territory or the Australian Capital Territory
    - a flight crew officer, a maritime employee, a waterside employee, employed in connection with interstate or overseas trade or commerce.

    The Act has also foreseen a referral mechanism (sec. 30A to 30R) enabling states to join the national system rather than keeping their own specific system.

    Since 1 January 2010, sole traders, partnerships, other unincorporated entities and non-trading corporations in New South Wales, Queensland, South Australia and Tasmania have joined the national system.
    All private sector employers in the New South Wales, Queensland, South Australian, Tasmanian system are therefore covered by the national system since 1 January 2010.
    The Western Australian government has chosen not to join the national system.

    Consequently, the following employees are not covered by those provisions of the FWA which only applies to national system employees:
    - Employees in state public sector and local government employees in New South Wales, Queensland, South Australia and Tasmania and Western Australia are not covered by the national system and remain under their respective state system.
    - Western Australian corporations whose main activity is not trading or financial.
    - Western Australian sole traders, partnerships, or other unincorporated entities.

    With regards to protection against unfair dismissal, according to s382, a national system employee is protected from unfair dismissal and is therefore eligible to make an application for unfair dismissal if he or she has completed 'the minimum employment period'. In addition to having completed the minimum employment period, s382 provides that one of the following conditions shall be fulfilled:
    "(i) a modern award covers the person;
    (ii) an enterprise agreement applies to the person in relation to the employment;
    (iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold"[which from 1 July 2009 is $108,300, indexed annually]
    .

    In addition, there are specific exclusions attached to a number of dismissals requirements. Such exclusions, generally based on the nature of the employment relationship, have been indicated under the relevant item (i.e redundancy pay, notice of termination...).

    On "who is covered by the national system", see the website "Fair Work Online":
    http://www.fairwork.gov.au/Things-everyone-should-know/Pages/Who-is-covered-by-the-national-system.aspx?role=employees


Reforms under process
The Fair Work Act 2009 provides the new legislative framework for workplace relations in Australia. It replaces the former "Work Choices legislation (Workplace Relations Act 1996 as last amended in 2005).
While most provisions of the Act (including those on unfair dismissal) entered into force on 1 July 2009, it is only since 1 January 2010 that it became fully applicable with the entry into force of the provisions relating to Modern Awards and National Employment Standards.
The Small Business Fair Dismissal Code (applicable to the employers with less than 15 full-time equivalent employees) came into operation on 1 July 2009



References
NOTE: This information has changed since the previous period covered.
  • Fair Work Act 2009 [FWA], Act No. 28 of 2009, dated 7 April 2009 as amended up to Act No. 156 of 2015, 27 November 2015
    Date: 27 Nov 2015; view website »
  • Fair Work Regulations 2009 [FWR], Select Legislative Instrument 2009 No. 112 dated 18 June 2009, as amended up to SLI No. 95 of 2014, 1 July 2014
    Date: 01 Jul 2014; view website »
  • Small Business Fair Dismissal Code (2009) declared on 24 June 2009 pursuant to subsection 388(1) of the Fair Work Act 2009
    Date: 24 Jun 2009; view website »
Scope
Size of enterprises excluded (≤): 15
Remarks:
  • Although there is no general exclusion based on the size of the enterprise in the FWA, there are however some exemptions or specific requirements pertaining to dismissal in businesses with less than 15 employees (referred to in the Act as "small business employer": s23 FWA).
    1) Small business employers are excluded from the obligation to pay redundancy pay (s121(1)b) FWA)
    2) In addition, small business employees cannot make a claim for unfair dismissal in the first 12 months following their engagement, whereas protection against unfair dismissal applies after 6 months of employment in businesses with 15 or more employees.
    3) After the 12-month-period of employment, small business employers must observe the requirements set out in the Small Business Code in order to dismiss an employee. If the employer follows the Code, then the dismissal will be deemed to be fair.

    It is worth noting that under the former legislation, there was a broader exemption related to the size of the employer's workforce. According to s643 (Workplace Relations Act), claims of unfair dismissal were not available to employees working for an employer with 100 or fewer employees.

Workers' categories excluded: non-federally regulated workers
Remarks:
  • The scope of application of the FWA differs in the various parts of the Act. 'Employee' and 'employer' are either given 'their ordinary meaning' or most frequently refer to 'national system employees' or 'national system employer'.
    The main provisions on dismissal apply only to national system employees (i.e Part 3-2 on Unfair Dismissal, redundancy pay and notice of termination provisions).

    The definition of national system employees and employers is provided in s14 and 15 FWA.
    Employees covered by the national workplace relations system include those:
    - employed by a constitutional corporation (these are corporations that are trading or financial, usually Pty Ltd or Ltd companies)
    - employed by the Commonwealth or a Commonwealth authority
    - employed in Victoria, the Northern Territory or the Australian Capital Territory
    - a flight crew officer, a maritime employee, a waterside employee, employed in connection with interstate or overseas trade or commerce.

    The Act has also foreseen a referral mechanism (sec. 30A to 30R) enabling states to join the national system rather than keeping their own specific system.

    Since 1 January 2010, sole traders, partnerships, other unincorporated entities and non-trading corporations in New South Wales, Queensland, South Australia and Tasmania have joined the national system.
    All private sector employers in the New South Wales, Queensland, South Australian, Tasmanian system are therefore covered by the national system since 1 January 2010.
    The Western Australian government has chosen not to join the national system.

    Consequently, the following employees are not covered by those provisions of the FWA which only applies to national system employees:
    - Employees in state public sector and local government employees in New South Wales, Queensland, South Australia and Tasmania and Western Australia are not covered by the national system and remain under their respective state system.
    - Western Australian corporations whose main activity is not trading or financial.
    - Western Australian sole traders, partnerships, or other unincorporated entities.

    With regards to protection against unfair dismissal, according to s382, a national system employee is protected from unfair dismissal and is therefore eligible to make an application for unfair dismissal if he or she has completed 'the minimum employment period'. In addition to having completed the minimum employment period, s382 provides that one of the following conditions shall be fulfilled:
    "(i) a modern award covers the person;
    (ii) an enterprise agreement applies to the person in relation to the employment;
    (iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold"[which from 1 July 2009 is $108,300, indexed annually]
    .

    In addition, there are specific exclusions attached to a number of dismissals requirements. Such exclusions, generally based on the nature of the employment relationship, have been indicated under the relevant item (i.e redundancy pay, notice of termination...).

    On "who is covered by the national system", see the website "Fair Work Online":
    http://www.fairwork.gov.au/Things-everyone-should-know/Pages/Who-is-covered-by-the-national-system.aspx?role=employees


Reforms under process
The Fair Work Act 2009 provides the new legislative framework for workplace relations in Australia. It replaces the former "Work Choices legislation (Workplace Relations Act 1996 as last amended in 2005).
While most provisions of the Act (including those on unfair dismissal) entered into force on 1 July 2009, it is only since 1 January 2010 that it became fully applicable with the entry into force of the provisions relating to Modern Awards and National Employment Standards.
The Small Business Fair Dismissal Code (applicable to the employers with less than 15 full-time equivalent employees) came into operation on 1 July 2009



References
NOTE: This information has changed since the previous period covered.
  • Fair Work Act 2009 [FWA], Act No. 28 of 2009, dated 7 April 2009 as amended up to Act No. 62 of 2014, 1 July 2014
    Date: 01 Jul 2014; view website »
  • Fair Work Regulations 2009 [FWR], Select Legislative Instrument 2009 No. 112 dated 18 June 2009, as amended up to SLI No. 95 of 2014, 1 July 2014
    Date: 01 Jul 2014; view website »
  • Small Business Fair Dismissal Code (2009) declared on 24 June 2009 pursuant to subsection 388(1) of the Fair Work Act 2009
    Date: 24 Jun 2009; view website »
Scope
Size of enterprises excluded (≤): 15
Remarks:
  • Although there is no general exclusion based on the size of the enterprise in the FWA, there are however some exemptions or specific requirements pertaining to dismissal in businesses with less than 15 employees (referred to in the Act as "small business employer": s23 FWA).
    1) Small business employers are excluded from the obligation to pay redundancy pay (s121(1)b) FWA)
    2) In addition, small business employees cannot make a claim for unfair dismissal in the first 12 months following their engagement, whereas protection against unfair dismissal applies after 6 months of employment in businesses with 15 or more employees.
    3) After the 12-month-period of employment, small business employers must observe the requirements set out in the Small Business Code in order to dismiss an employee. If the employer follows the Code, then the dismissal will be deemed to be fair.

    It is worth noting that under the former legislation, there was a broader exemption related to the size of the employer's workforce. According to s643 (Workplace Relations Act), claims of unfair dismissal were not available to employees working for an employer with 100 or fewer employees.

Workers' categories excluded: non-federally regulated workers
Remarks:
  • The scope of application of the FWA differs in the various parts of the Act. 'Employee' and 'employer' are either given 'their ordinary meaning' or most frequently refer to 'national system employees' or 'national system employer'.
    The main provisions on dismissal apply only to national system employees (i.e Part 3-2 on Unfair Dismissal, redundancy pay and notice of termination provisions).

    The definition of national system employees and employers is provided in s14 and 15 FWA.
    Employees covered by the national workplace relations system include those:
    - employed by a constitutional corporation (these are corporations that are trading or financial, usually Pty Ltd or Ltd companies)
    - employed by the Commonwealth or a Commonwealth authority
    - employed in Victoria, the Northern Territory or the Australian Capital Territory
    - a flight crew officer, a maritime employee, a waterside employee, employed in connection with interstate or overseas trade or commerce.

    The Act has also foreseen a referral mechanism (sec. 30A to 30R) enabling states to join the national system rather than keeping their own specific system.

    Since 1 January 2010, sole traders, partnerships, other unincorporated entities and non-trading corporations in New South Wales, Queensland, South Australia and Tasmania have joined the national system.
    All private sector employers in the New South Wales, Queensland, South Australian, Tasmanian system are therefore covered by the national system since 1 January 2010.
    The Western Australian government has chosen not to join the national system.

    Consequently, the following employees are not covered by those provisions of the FWA which only applies to national system employees:
    - Employees in state public sector and local government employees in New South Wales, Queensland, South Australia and Tasmania and Western Australia are not covered by the national system and remain under their respective state system.
    - Western Australian corporations whose main activity is not trading or financial.
    - Western Australian sole traders, partnerships, or other unincorporated entities.

    With regards to protection against unfair dismissal, according to s382, a national system employee is protected from unfair dismissal and is therefore eligible to make an application for unfair dismissal if he or she has completed 'the minimum employment period'. In addition to having completed the minimum employment period, s382 provides that one of the following conditions shall be fulfilled:
    "(i) a modern award covers the person;
    (ii) an enterprise agreement applies to the person in relation to the employment;
    (iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold"[which from 1 July 2009 is $108,300, indexed annually]
    .

    In addition, there are specific exclusions attached to a number of dismissals requirements. Such exclusions, generally based on the nature of the employment relationship, have been indicated under the relevant item (i.e redundancy pay, notice of termination...).

    On "who is covered by the national system", see the website "Fair Work Online":
    http://www.fairwork.gov.au/Things-everyone-should-know/Pages/Who-is-covered-by-the-national-system.aspx?role=employees


Reforms under process
The Fair Work Act 2009 provides the new legislative framework for workplace relations in Australia. It replaces the former "Work Choices legislation (Workplace Relations Act 1996 as last amended in 2005).
While most provisions of the Act (including those on unfair dismissal) entered into force on 1 July 2009, it is only since 1 January 2010 that it became fully applicable with the entry into force of the provisions relating to Modern Awards and National Employment Standards.
The Small Business Fair Dismissal Code (applicable to the employers with less than 15 full-time equivalent employees) came into operation on 1 July 2009



References
NOTE: This information has changed since the previous period covered.
  • Fair Work Act 2009 [FWA], Act No. 28 of 2009, dated 7 April 2009 as amended up to Act No. 118 of 2013, 1 August 2013
    Date: 01 Aug 2013; view website »
  • Fair Work Regulations 2009 [FWR], Select Legislative Instrument 2009 No. 112 dated 18 June 2009, as amended up to SLI No. 242 of 2013, 26 November, 2013
    Date: 26 Nov 2013; view website »
  • Small Business Fair Dismissal Code (2009) declared on 24 June 2009 pursuant to subsection 388(1) of the Fair Work Act 2009
    Date: 24 Jun 2009; view website »
Scope
Size of enterprises excluded (≤): 15
Remarks:
  • Although there is no general exclusion based on the size of the enterprise in the FWA, there are however some exemptions or specific requirements pertaining to dismissal in businesses with less than 15 employees (referred to in the Act as "small business employer": s23 FWA).
    1) Small business employers are excluded from the obligation to pay redundancy pay (s121(1)b) FWA)
    2) In addition, small business employees cannot make a claim for unfair dismissal in the first 12 months following their engagement, whereas protection against unfair dismissal applies after 6 months of employment in businesses with 15 or more employees.
    3) After the 12-month-period of employment, small business employers must observe the requirements set out in the Small Business Code in order to dismiss an employee. If the employer follows the Code, then the dismissal will be deemed to be fair.

    It is worth noting that under the former legislation, there was a broader exemption related to the size of the employer's workforce. According to s643 (Workplace Relations Act), claims of unfair dismissal were not available to employees working for an employer with 100 or fewer employees.

Workers' categories excluded: non-federally regulated workers
Remarks:
  • The scope of application of the FWA differs in the various parts of the Act. 'Employee' and 'employer' are either given 'their ordinary meaning' or most frequently refer to 'national system employees' or 'national system employer'.
    The main provisions on dismissal apply only to national system employees (i.e Part 3-2 on Unfair Dismissal, redundancy pay and notice of termination provisions).

    The definition of national system employees and employers is provided in s14 and 15 FWA.
    Employees covered by the national workplace relations system include those:
    - employed by a constitutional corporation (these are corporations that are trading or financial, usually Pty Ltd or Ltd companies)
    - employed by the Commonwealth or a Commonwealth authority
    - employed in Victoria, the Northern Territory or the Australian Capital Territory
    - a flight crew officer, a maritime employee, a waterside employee, employed in connection with interstate or overseas trade or commerce.

    The Act has also foreseen a referral mechanism (sec. 30A to 30R) enabling states to join the national system rather than keeping their own specific system.

    Since 1 January 2010, sole traders, partnerships, other unincorporated entities and non-trading corporations in New South Wales, Queensland, South Australia and Tasmania have joined the national system.
    All private sector employers in the New South Wales, Queensland, South Australian, Tasmanian system are therefore covered by the national system since 1 January 2010.
    The Western Australian government has chosen not to join the national system.

    Consequently, the following employees are not covered by those provisions of the FWA which only applies to national system employees:
    - Employees in state public sector and local government employees in New South Wales, Queensland, South Australia and Tasmania and Western Australia are not covered by the national system and remain under their respective state system.
    - Western Australian corporations whose main activity is not trading or financial.
    - Western Australian sole traders, partnerships, or other unincorporated entities.

    With regards to protection against unfair dismissal, according to s382, a national system employee is protected from unfair dismissal and is therefore eligible to make an application for unfair dismissal if he or she has completed 'the minimum employment period'. In addition to having completed the minimum employment period, s382 provides that one of the following conditions shall be fulfilled:
    "(i) a modern award covers the person;
    (ii) an enterprise agreement applies to the person in relation to the employment;
    (iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold"[which from 1 July 2009 is $108,300, indexed annually]
    .

    In addition, there are specific exclusions attached to a number of dismissals requirements. Such exclusions, generally based on the nature of the employment relationship, have been indicated under the relevant item (i.e redundancy pay, notice of termination...).

    On "who is covered by the national system", see the website "Fair Work Online":
    http://www.fairwork.gov.au/Things-everyone-should-know/Pages/Who-is-covered-by-the-national-system.aspx?role=employees


Reforms under process
The Fair Work Act 2009 provides the new legislative framework for workplace relations in Australia. It replaces the former "Work Choices legislation (Workplace Relations Act 1996 as last amended in 2005).
While most provisions of the Act (including those on unfair dismissal) entered into force on 1 July 2009, it is only since 1 January 2010 that it became fully applicable with the entry into force of the provisions relating to Modern Awards and National Employment Standards.
The Small Business Fair Dismissal Code (applicable to the employers with less than 15 full-time equivalent employees) came into operation on 1 July 2009



References
  • Fair Work Act 2009 [FWA], Act No. 28 of 2009, dated 7 April 2009 as amended up to Act No. 136 of 2012, 22 September 2012
    Date: 22 Sep 2012; view website »
  • 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
    Date: 15 Sep 2012; view website »
  • Small Business Fair Dismissal Code (2009) declared on 24 June 2009 pursuant to subsection 388(1) of the Fair Work Act 2009
    Date: 24 Jun 2009; view website »
Scope
Size of enterprises excluded (≤): 15
Remarks:
  • Although there is no general exclusion based on the size of the enterprise in the FWA, there are however some exemptions or specific requirements pertaining to dismissal in businesses with less than 15 employees (referred to in the Act as "small business employer": s23 FWA).
    1) Small business employers are excluded from the obligation to pay redundancy pay (s121(1)b) FWA)
    2) In addition, small business employees cannot make a claim for unfair dismissal in the first 12 months following their engagement, whereas protection against unfair dismissal applies after 6 months of employment in businesses with 15 or more employees.
    3) After the 12-month-period of employment, small business employers must observe the requirements set out in the Small Business Code in order to dismiss an employee. If the employer follows the Code, then the dismissal will be deemed to be fair.

    It is worth noting that under the former legislation, there was a broader exemption related to the size of the employer's workforce. According to s643 (Workplace Relations Act), claims of unfair dismissal were not available to employees working for an employer with 100 or fewer employees.

Workers' categories excluded: non-federally regulated workers
Remarks:
  • The scope of application of the FWA differs in the various parts of the Act. 'Employee' and 'employer' are either given 'their ordinary meaning' or most frequently refer to 'national system employees' or 'national system employer'.
    The main provisions on dismissal apply only to national system employees (i.e Part 3-2 on Unfair Dismissal, redundancy pay and notice of termination provisions).

    The definition of national system employees and employers is provided in s14 and 15 FWA.
    Employees covered by the national workplace relations system include those:
    - employed by a constitutional corporation (these are corporations that are trading or financial, usually Pty Ltd or Ltd companies)
    - employed by the Commonwealth or a Commonwealth authority
    - employed in Victoria, the Northern Territory or the Australian Capital Territory
    - a flight crew officer, a maritime employee, a waterside employee, employed in connection with interstate or overseas trade or commerce.

    The Act has also foreseen a referral mechanism (sec. 30A to 30R) enabling states to join the national system rather than keeping their own specific system.

    Since 1 January 2010, sole traders, partnerships, other unincorporated entities and non-trading corporations in New South Wales, Queensland, South Australia and Tasmania have joined the national system.
    All private sector employers in the New South Wales, Queensland, South Australian, Tasmanian system are therefore covered by the national system since 1 January 2010.
    The Western Australian government has chosen not to join the national system.

    Consequently, the following employees are not covered by those provisions of the FWA which only applies to national system employees:
    - Employees in state public sector and local government employees in New South Wales, Queensland, South Australia and Tasmania and Western Australia are not covered by the national system and remain under their respective state system.
    - Western Australian corporations whose main activity is not trading or financial.
    - Western Australian sole traders, partnerships, or other unincorporated entities.

    With regards to protection against unfair dismissal, according to s382, a national system employee is protected from unfair dismissal and is therefore eligible to make an application for unfair dismissal if he or she has completed 'the minimum employment period'. In addition to having completed the minimum employment period, s382 provides that one of the following conditions shall be fulfilled:
    "(i) a modern award covers the person;
    (ii) an enterprise agreement applies to the person in relation to the employment;
    (iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold"[which from 1 July 2009 is $108,300, indexed annually]
    .

    In addition, there are specific exclusions attached to a number of dismissals requirements. Such exclusions, generally based on the nature of the employment relationship, have been indicated under the relevant item (i.e redundancy pay, notice of termination...).

    On "who is covered by the national system", see the website "Fair Work Online":
    http://www.fairwork.gov.au/Things-everyone-should-know/Pages/Who-is-covered-by-the-national-system.aspx?role=employees


Reforms under process
The Fair Work Act 2009 provides the new legislative framework for workplace relations in Australia. It replaces the former "Work Choices legislation (Workplace Relations Act 1996 as last amended in 2005).
While most provisions of the Act (including those on unfair dismissal) entered into force on 1 July 2009, it is only since 1 January 2010 that it became fully applicable with the entry into force of the provisions relating to Modern Awards and National Employment Standards.
The Small Business Fair Dismissal Code (applicable to the employers with less than 15 full-time equivalent employees) came into operation on 1 July 2009



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
    Date: 20 Jun 2010; view website »
  • 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
    Date: 21 Jun 2011; view website »
  • Small Business Fair Dismissal Code (2009) declared on 24 June 2009 pursuant to subsection 388(1) of the Fair Work Act 2009
    Date: 24 Jun 2009; view website »
Scope
Size of enterprises excluded (≤): 15
Remarks:
  • Although there is no general exclusion based on the size of the enterprise in the FWA, there are however some exemptions or specific requirements pertaining to dismissal in businesses with less than 15 employees (referred to in the Act as "small business employer": s23 FWA).
    1) Small business employers are excluded from the obligation to pay redundancy pay (s121(1)b) FWA)
    2) In addition, small business employees cannot make a claim for unfair dismissal in the first 12 months following their engagement, whereas protection against unfair dismissal applies after 6 months of employment in businesses with 15 or more employees.
    3) After the 12-month-period of employment, small business employers must observe the requirements set out in the Small Business Code in order to dismiss an employee. If the employer follows the Code, then the dismissal will be deemed to be fair.

    It is worth noting that under the former legislation, there was a broader exemption related to the size of the employer's workforce. According to s643 (Workplace Relations Act), claims of unfair dismissal were not available to employees working for an employer with 100 or fewer employees.

Workers' categories excluded: non-federally regulated workers
Remarks:
  • The scope of application of the FWA differs in the various parts of the Act. 'Employee' and 'employer' are either given 'their ordinary meaning' or most frequently refer to 'national system employees' or 'national system employer'.
    The main provisions on dismissal apply only to national system employees (i.e Part 3-2 on Unfair Dismissal, redundancy pay and notice of termination provisions).

    The definition of national system employees and employers is provided in s14 and 15 FWA.
    Employees covered by the national workplace relations system include those:
    - employed by a constitutional corporation (these are corporations that are trading or financial, usually Pty Ltd or Ltd companies)
    - employed by the Commonwealth or a Commonwealth authority
    - employed in Victoria, the Northern Territory or the Australian Capital Territory
    - a flight crew officer, a maritime employee, a waterside employee, employed in connection with interstate or overseas trade or commerce.

    The Act has also foreseen a referral mechanism (sec. 30A to 30R) enabling states to join the national system rather than keeping their own specific system.

    Since 1 January 2010, sole traders, partnerships, other unincorporated entities and non-trading corporations in New South Wales, Queensland, South Australia and Tasmania have joined the national system.
    All private sector employers in the New South Wales, Queensland, South Australian, Tasmanian system are therefore covered by the national system since 1 January 2010.
    The Western Australian government has chosen not to join the national system.

    Consequently, the following employees are not covered by those provisions of the FWA which only applies to national system employees:
    - Employees in state public sector and local government employees in New South Wales, Queensland, South Australia and Tasmania and Western Australia are not covered by the national system and remain under their respective state system.
    - Western Australian corporations whose main activity is not trading or financial.
    - Western Australian sole traders, partnerships, or other unincorporated entities.

    With regards to protection against unfair dismissal, according to s382, a national system employee is protected from unfair dismissal and is therefore eligible to make an application for unfair dismissal if he or she has completed 'the minimum employment period'. In addition to having completed the minimum employment period, s382 provides that one of the following conditions shall be fulfilled:
    "(i) a modern award covers the person;
    (ii) an enterprise agreement applies to the person in relation to the employment;
    (iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold"[which from 1 July 2009 is $108,300, indexed annually]
    .

    In addition, there are specific exclusions attached to a number of dismissals requirements. Such exclusions, generally based on the nature of the employment relationship, have been indicated under the relevant item (i.e redundancy pay, notice of termination...).

    On "who is covered by the national system", see the website "Fair Work Online":
    http://www.fairwork.gov.au/Things-everyone-should-know/Pages/Who-is-covered-by-the-national-system.aspx?role=employees


Reforms under process
The Fair Work Act 2009 provides the new legislative framework for workplace relations in Australia. It replaces the former "Work Choices legislation (Workplace Relations Act 1996 as last amended in 2005).
While most provisions of the Act (including those on unfair dismissal) entered into force on 1 July 2009, it is only since 1 January 2010 that it became fully applicable with the entry into force of the provisions relating to Modern Awards and National Employment Standards.
The Small Business Fair Dismissal Code (applicable to the employers with less than 15 full-time equivalent employees) came into operation on 1 July 2009



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
    Date: 31 May 2010; view website »
  • 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
    Date: 14 Dec 2009; view website »
  • Small Business Fair Dismissal Code (2009) declared on 24 June 2009 pursuant to subsection 388(1) of the Fair Work Act 2009
    Date: 24 Jun 2009; view website »
Scope
Size of enterprises excluded (≤): 15
Remarks:
  • Although there is no general exclusion based on the size of the enterprise in the FWA, there are however some exemptions or specific requirements pertaining to dismissal in businesses with less than 15 employees (referred to in the Act as "small business employer": s23 FWA).
    1) Small business employers are excluded from the obligation to pay redundancy pay (s121(1)b) FWA)
    2) In addition, small business employees cannot make a claim for unfair dismissal in the first 12 months following their engagement, whereas protection against unfair dismissal applies after 6 months of employment in businesses with 15 or more employees.
    3) After the 12-month-period of employment, small business employers must observe the requirements set out in the Small Business Code in order to dismiss an employee. If the employer follows the Code, then the dismissal will be deemed to be fair.

    It is worth noting that under the former legislation, there was a broader exemption related to the size of the employer's workforce. According to s643 (Workplace Relations Act), claims of unfair dismissal were not available to employees working for an employer with 100 or fewer employees.

Workers' categories excluded: non-federally regulated workers
Remarks:
  • The scope of application of the FWA differs in the various parts of the Act. 'Employee' and 'employer' are either given 'their ordinary meaning' or most frequently refer to 'national system employees' or 'national system employer'.
    The main provisions on dismissal apply only to national system employees (i.e Part 3-2 on Unfair Dismissal, redundancy pay and notice of termination provisions).

    The definition of national system employees and employers is provided in s14 and 15 FWA.
    Employees covered by the national workplace relations system include those:
    - employed by a constitutional corporation (these are corporations that are trading or financial, usually Pty Ltd or Ltd companies)
    - employed by the Commonwealth or a Commonwealth authority
    - employed in Victoria, the Northern Territory or the Australian Capital Territory
    - a flight crew officer, a maritime employee, a waterside employee, employed in connection with interstate or overseas trade or commerce.

    The Act has also foreseen a referral mechanism (sec. 30A to 30R) enabling states to join the national system rather than keeping their own specific system.

    Since 1 January 2010, sole traders, partnerships, other unincorporated entities and non-trading corporations in New South Wales, Queensland, South Australia and Tasmania have joined the national system.
    All private sector employers in the New South Wales, Queensland, South Australian, Tasmanian system are therefore covered by the national system since 1 January 2010.
    The Western Australian government has chosen not to join the national system.

    Consequently, the following employees are not covered by those provisions of the FWA which only applies to national system employees:
    - Employees in state public sector and local government employees in New South Wales, Queensland, South Australia and Tasmania and Western Australia are not covered by the national system and remain under their respective state system.
    - Western Australian corporations whose main activity is not trading or financial.
    - Western Australian sole traders, partnerships, or other unincorporated entities.

    With regards to protection against unfair dismissal, according to s382, a national system employee is protected from unfair dismissal and is therefore eligible to make an application for unfair dismissal if he or she has completed 'the minimum employment period'. In addition to having completed the minimum employment period, s382 provides that one of the following conditions shall be fulfilled:
    "(i) a modern award covers the person;
    (ii) an enterprise agreement applies to the person in relation to the employment;
    (iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold"[which from 1 July 2009 is $108,300, indexed annually]
    .

    In addition, there are specific exclusions attached to a number of dismissals requirements. Such exclusions, generally based on the nature of the employment relationship, have been indicated under the relevant item (i.e redundancy pay, notice of termination...).

    On "who is covered by the national system", see the website "Fair Work Online":
    http://www.fairwork.gov.au/Things-everyone-should-know/Pages/Who-is-covered-by-the-national-system.aspx?role=employees


Reforms under process
The Fair Work Act 2009 provides the new legislative framework for workplace relations in Australia. It replaces the former "Work Choices legislation (Workplace Relations Act 1996 as last amended in 2005).
While most provisions of the Act (including those on unfair dismissal) entered into force on 1 July 2009, it is only since 1 January 2010 that it became fully applicable with the entry into force of the provisions relating to Modern Awards and National Employment Standards.
The Small Business Fair Dismissal Code (applicable to the employers with less than 15 full-time equivalent employees) came into operation on 1 July 2009