Read more Employment Contract articles below >>
Among the latest developments in legislation and recent court decisions pertinent to Australian employment law are several considerations that employers and businesses should be aware of. Changes to the Disability Discrimination Act of 1992 and the Act of Age Discrimination of 2004, as well as new Fair Work regulations will affect daily business operations for many.
Recent decisions in Casari v Sydney South West Area Health Service and National Tertiary Education Industry Union v La Trobe University have further defined the legal boundaries for valid terminations based on employee conduct, and determined that even defined periods of casual work must not always be considered when calculating total periods of service accordingly.
Termination Based on Breach of Contract Must “Strike At the Heart”
The NSW Industrial Relations Commission determined it was unfair to dismiss a hospital orderly for taking a photo of a nude child without parental consent in Casari v Sydney South West Area Health Service NSWIR Comm 103. Taking the photo presented a breach in his employment contract but did not harm the child in any sexual or other way – thus did not “strike at the heart” of the contract. The employee will be reinstated based on the Commission’s order, but he has also been asked to immediately resign due to the hospital losing trust in him. He will also receive back pay beginning at the time of his now-determined unjust termination.
Casual Periods of Work May Not Be Considered in Matters of Total Service Time
In National Tertiary Education Industry Union v La Trobe University (2009) AIRC 576, the Australian Industrial Relations Commission determined that even defined periods of casual work should not always be considered when calculating the continuous service of an employee. Employees at La Trobe University were seeking to have their periods of casual service, which were served prior to becoming permanent employees, to be considered when calculating their leave, payments and other entitlements. Because no definition existed for “continuous service”, it was decided that it must exclude casual employment periods because these are based on a “series of contracts or engagements.”
Changes in the Disability Discrimination Act 1992
Disability Discrimination Act 1992 changes take effect on August 5, 2009 to include the following: In the case of indirect discrimination claims, the burden of proof now lies with the employer to show their requirements are reasonable of employees. Employers must also make reasonable adjustments to accommodate those w/ disabilities. Employers will now be given more leeway in determining that an employee can not perform the ‘inherent requirements’ of a job, or that ‘unjustifiable hardship’ would be imposed in order to act non-discriminatorily toward a disabled employee without facing the consequences of a discriminatory claim.
Changes in the Age Discrimination Act 2004
The Age Discrimination Act of 2004 was also amended to state that any act by an employer may be discriminatory if age was even one of the reasons for that action, versus being the dominant or only reason.
New Fair Work Regulations Apply to Businesses under Federal System
Effective 1 July 2009, the Fair Work Regulations found in the Fair Work Act will apply to all businesses within the federal system. Fair Work Australia has been established to combine the Australian Industrial Relation s Commission, the Workplace Authority and the Workplace Ombudsman to administer these regulations.
New unfair dismissal provisions also come into effect on this date with updated qualifying periods for small and large businesses. The ‘Small Business Fair Dismissal Code’ must be applied when terminating staff in businesses with less than 15 full-time employees. Employees also have 14 days to file a complaint with Fair Work Australia after the date of dismissal.
Other Employment Contract articles:
PDF Disclaimer: The above information provided by Inveiss Legal Pty Ltd is intended only as a guide. The impact of laws can vary widely based on the specific facts of each case. Further, given the changing nature of laws and the inherent speed of electronic communication, there may be inaccuracies in the above information. As such, this information is provided on the understanding that Inveiss Legal Pty Ltd is not rendering any legal advice or services. The information contained herein is not a substitute for qualified, independent legal advice and the same should be sort prior to engaging in any activity relating to the above subject-matter.
Although we have made every effort to ensure the information has been obtained from reliable sources, Inveiss Legal Pty Ltd is not responsible for any errors or omissions. In no event will Inveiss Legal Pty Ltd, or its directors, agents or employees, be liable for any decision made, or withheld, in reliance of the information contained herein.
