Wrongful Dismissal is not much changed.

We see above, that Workchoices caused a huge fall off in the wrongful dismissal jurisdiction in NSW. That was also the case everywhere else. In fact, though, the overall impact was not as high as you would think.

Australia-wide in 2005-6 March to March (Commonwealth plus states), there were about 12,000 commence-ments. That came back to about 8,000 in 2006-7 March to March. It has sat at about that number since. Out of a workforce of about 10 million, that is not a great impact.

The changes in the Fair Work Act may well cancel each other out, when it comes to numbers of cases com-menced. For example, you now only have 14 days to bring an action. Workchoices gave 21. That 14 day dead-line is “practically” inflexible – the legislation makes a point of restricting the power to extend it. Many cases will be prevented simply by the application of the deadline, just as many were prevented by the 21 days under Workchoices.

There is no change for anybody who employs more than 100 employees. Same obligations, same address for the hearings, same qualifying period of employment (six months) before a person can bring a case. Except for the 14 days, down from 21.
For employers with between 15 and 100 employees, a case may now be brought. That is only so, though, if the person has been employed 6 MONTHS. Same: 14 days deadline.

A small business employer (fewer than 15 employees) is immune from the unfair dismissal system for all per-sons with less than 12 months service (Note: as under Workchoices, the “unlawful” dismissal provisions apply from day one for everyone).

The immunity continues if, prior to termination, they give the person a warning. There is a “checklist form” provided. If the employer can show they have followed the “Small Business Fair Dismissal Code” (say, by stat dec) Fair Work Australia is prohibited from continuing to even hear the case. The employer does not need to go to a hearing – just provide proof of compliance. The stat dec would ideally include a copy of the “check list” signed and dated.

Use of the “dismissal code checklist” is useful for all employers. If it is carefully followed and proven by completing the “checklist”, then the chances of showing the tribunal (“Fair Work Australia”) that you have engaged in “fair go all round”, is greatly enhanced.
One last non-change: Persons earning over $108,300 per year (indexed each July) who are covered by an award, may no longer have that award “apply” to them day to day, but will still have access to the unfair dismissal scheme due to their “coverage” by the award. So, highly paid sales reps, medical practitioners employed by corporate entities, Qantas captains and the like, are still “under the umbrella”.

Industrial relations Summary

There are very few changes. Life in the workplace will go on as before.

A prudent employer will continue to ensure they “meet the market” when it comes to wages and conditions. If a “Modern Award”, when made, embraces their private arrangements, they will enter into a “flexibility arrangement” with individual employees. These will provide greater flexibility, and less controversy than Workchoices.

An employer who is dissatisfied with an employee, will review their position before six months service if more than 15 are employed, and 12 months if fewer than 15.

If fewer than 15 are employed, and dismissal is necessary, and the employee has been there longer than 12 months, following the “procedure” will ensure immunity.

Even where there are more than 15 employees, the “checklist”, if used, will show the Commission (now “Fair Work Australia”) that the principles of “procedural fairness” have been followed.

Unlike previously, a terminated employee has only 14 days to file an action. Under Workchoices , most were filed in the third week so it is likely that this limitation will have a large restraining effect on the num-ber of new matters.

If a union official comes calling (and gives at least 24 hours notice) to recruit members, an employer must let the employees know when they will be there, what room they will be in, and make sure to point out that you neither encourage nor seek to prevent them attending the discussion in the room. Make it your express business to not know who attends or who doesn’t – ignorance will prevent accusations which can otherwise be easily made. This will almost never occur.

The only real “changes” wrought by Fair Work Australia will be felt by those who overreact.

The State Industrial Law Systems are Replaced

Indeed they are. Most State Governments are surrendering the powers to Fair Work Australia. NSW is the hold out.
There was a bit of forlorn hope held out in some quarters in this State, that the Rudd Government would reinstate the State Legislation which had been overridden by Workchoices. They simply didn’t. Perhaps they would have appointed members of the State tribunals to Fair Work Australia. They may, but they haven’t.

The NSW Industrial system which has existed in roughly its current form since 1928 (not 1902, as some people have suggested) is now largely a NSW public service dispute tribunal. It duplicates many func-tions of the Government and Related Employees Appeals Tribunal, and perhaps the Transport Appeals Board. It has duplicated the Anti-Discrimination Board and the Administrative Decisions Tribunal for many years.

One desperate dice throw by the State Government this year has been to abolish the Industrial Magistrates Court, and refer all matters to the Industrial Court. The Industrial Magistrates Court had been much by-passed by traffic going to the Federal Magistrates Court anyway.
What we will now have, is judges who are declared by statute to have the same standing as Supreme Court judges, doing Magistrates work. One hopes that the outcome is not that the quantum of judgments will simply (unconsciously of course) go up, and the cases grow more involved, to reflect the seniority of the tribunal giv-ing the ruling. For example, the Chief Industrial Magistrate now does “small claims” cases as part of the juris-diction. Claims under $20,000. Will a “superior court of record” now do them? The amount of extra work involved will certainly not fill the current void anyway.
What is “the current void”? :

The “void” is virtual disappearance of work for the State Commission.

From about 473 new matters commenced in the Section 106 “unfair contract” jurisdiction in 2005 – the last year before Workchoices – commencements went to 51 in 2007, almost a 90% fall off (they went down to 27 in 2008). Wrongful dismissal matters went from about 3750 in 2005 to about 400 in 2007, a number repeated in 2008 (also about a 90% fall). Industrial dispute notifications went from 1100 to 500. Even Occupational Health and Safety prosecutions went from 174 in 2005 to 93 in 2007 (after lobbying of the Government), but came back in 2008.

Of the ten or so Commissioners, three have left in the past year. Two of the thirteen judges and lay deputy presidents have retired. One has now been appointed to the Supreme Court. So, we have had about an 80-90% work reduction, and about 25% personnel reduction.
Change must come soon.