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Australia
 


Source and scope of regulations - 2019    

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
Workers' categories excluded: non-federally regulated workers


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


Types of employment contracts - 2019    

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Maximum probationary (trial) period: 1 year(s)

Fixed term contract (FTC):
  • Valid reasons for FTC use: no limitation
  • Maximum number of successive FTCs: no limitation
  • Maximum cumulative duration of successive FTCs: no limitation
  • % of workforce under FTC: 4.6 %

Substantive requirements for dismissals (justified and prohibited grounds) - 2019    

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Obligation to provide reasons to the employee: Yes

Valid grounds (justified dismissal): any fair reasons

Prohibited grounds: marital status; pregnancy; maternity leave; family responsibilities; filing a complaint against the employer; temporary work injury or illness; race; colour; sex; sexual orientation; religion; political opinion; social origin; age; trade union membership and activities; disabilities; parental leave; adoption leave

Workers enjoying special protection: no protected groups

Procedural requirements for individual dismissals - 2019    

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Notification to the worker to be dismissed: written

Notice period:
    • tenure ≥ 6 months
      • 1 week(s).
    • tenure ≥ 9 months
      • 1 week(s).
    • tenure ≥ 2 years
      • employees ≤ 45 years old - 2 week(s).
      • employees > 45 years old - 3 week(s).
    • tenure ≥ 4 years
      • employees ≤ 45 years old - 3 week(s).
      • employees > 45 years old - 4 week(s).
    • tenure ≥ 5 years
      • employees ≤ 45 years old - 4 week(s).
      • employees > 45 years old - 5 week(s).
    • tenure ≥ 10 years
      • employees ≤ 45 years old - 4 week(s).
      • employees > 45 years old - 5 week(s).
    • tenure ≥ 20 years
      • employees ≤ 45 years old - 4 week(s).
      • employees > 45 years old - 5 week(s).

    Pay in lieu of notice: Yes

    Notification to the public administration: No

    Notification to workers' representatives: No

    Approval by public administration or judicial bodies: No

    Approval by workers' representatives: No

    Procedural requirements for collective dismissals for economic reasons (redundancy, retrenchment) - 2019    

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    Definition of collective dismissal (number of employees concerned):
    Dismissal of 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons.

    Prior consultations with trade unions (workers' representatives): Yes

    Notification to the public administration: Yes

    Notification to workers' representatives: Yes

    Approval by public administration or judicial bodies: No

    Approval by workers' representatives: No

    Priority rules for collective dismissals (social considerations, age, job tenure): No

    Employer's obligation to consider alternatives to dismissal (transfers, retraining...): Yes

    Priority rules for re-employment: No

    Severance pay and redundancy payment - 2019    

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    Redundancy payment:
    • tenure ≥ 6 months: 0 week(s)
    • tenure ≥ 9 months: 0 week(s)
    • tenure ≥ 1 year: 4 week(s)
    • tenure ≥ 2 years: 6 week(s)
    • tenure ≥ 4 years: 8 week(s)
    • tenure ≥ 5 years: 10 week(s)
    • tenure ≥ 10 years: 12 week(s)
    • tenure ≥ 20 years: 12 week(s)

    Notes / Remarks
    1) Individual dismissal (non-economic): no statutory severance pay.
    2) Economic dismissal (individual and collective): statutory redundancy payment

    Avenues for redress (penalties, remedies) and litigation procedure for individual complaints - 2019    

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    Compensation for unfair dismissal - free determination by court: No

    Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
    Max. 26 weeks' salary or half the amount of the high income threshold [HIT]
    (The HIT, which is indexed annually is currently $145,400 (July 2018) therefore the compensation cap is $72,700.)

    Reinstatement available: Yes

    Preliminary mandatory conciliation: Yes

    Competent court(s) / tribunal(s): labour court

    Existing arbitration: Yes

    Source of additional information - 2019    

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    Links

    ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) - Comments on the Termination of Employment Convention, 1982, No. 158 »
    Comments by the CEACR on the application of the Termination of Employment Convention, 1982 (No. 158) in Australia.