Introduction
After being endorsed through the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (‘Work Choices’), radical changes have been made to the Australian systems. Work Choices legislation is primarily based on the corporations’ power in the Constitution; thus these amendments will primarily apply to employees engaged by ‘constitutional corporations’, see Dazmany Pty Ltd v Thorn (1997) 74 IR 182; (Price, 2007).
Unfair dismissal within the Workplace Relations Act as defined by the Australian Industrial Relations Commission (AIRC) refers to employment that has been terminated on grounds that termination was “harsh, unjust or unreasonable”. The Act states that the unfair dismissal provisions apply in relation to the termination of employment of an “employee” defined in s 5(1) (s 637(1)) and the concept of “employer” defined in s 6(1).
Discussion
2.1. Pre Work Choices
Unfair dismissal is about harsh dismissal and is actionable via legislation, awards and agreements (Waarden, 2004), this is based on the Workplace Relations Act (WRA) (1996). The AIRC assess factors to what amounts to unfair dismissal (( b) Cantanzariti, 2006). The unfair dismissal provision of the WRA (1996) protects employees under the federal award, except contract workers, probationary employees (less than three months of employment), casuals (with less than twelve months employment), trainees and higher income earners ($90, 400 per annum) (WRA, s 43(3)). Employees who were employed in businesses with 25 employees or less were not allowed to claim under this provision. Redundancy provisions in awards and the ‘No Disadvantage’ test were also available. Even retrenched employees were able to make claims on the basis that the severance benefits provided to th ...