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Casual work window still open

THE Federal Government will need to act quickly if it wants to close a window of opportunity presented to casual workers following a landmark Federal Court decision last year.

On November 16 last year the Federal Court found that regulations tied to the workplace Relations Act that exempted casuals from seeking unfair dismissal within the first 12 months of employment were invalid.

The regulations were declared invalid due to technical legalities following a successful unfair dismissal claim by the Shop, Distributive and Allied Employees Association representing Omar Hamzy against his employer Tricon International Restaurants trading as KFC.

Since that time, casual employees have been able to pursue unfair dismissal claims from the moment that they have been employed.

Deacons Lawyers workplace relations senior associate Alistair Salmon said while he had not seen any evidence of an increase in claims coming through by casuals since the court decision, he suspects that it had risen.

“I would have thought that any lawyer would say that if you are a casual quickly get your application in because the regulations excluding short-term casual employees from the termination of employment provisions of the Workplace Relations Act are invalid,” Mr Salmon said.

The Government has already acted by introducing the Workplace Relations Amendment (Fair Dismissal) Bill that will retaining the 12-month exemption status quo that has been in place for the past five years.

However, the Australian Chamber of Commerce and Industry has expressed concern at the Labor Opposition’s suggestions that they would seek to amend the Bill to a six-month exclusion clause.

ACCI acting chief executive Lyndon Rowe said that if the Senate forced a lesser period than the 12-month exclusion provisions then the Parliament would have achieved the opposite of what both the Liberal party and the Labor Party had intended.

The Labor Party has indicated that it was willing to pull back aspects of unfair dismissal.

“A watering down of the five year old law will add more risks and deterrents to the employment of staff,” Mr Rowe said.

“In the interests of jobs, especially in service industries, that should not be allowed to happen.

“Such an outcome would fly in the face of public statements by the Labor Party that it is sympathetic to easing the impact on business of unfair dismissal laws.

“Those that advocate a less than 12 month exclusion need to explain clearly to all employers, including small businesses, why they intend to increase the right of casual employees to sue employers for unfair dismissal.”

The Hamzy unfair dismissal claim, played through the court was initially dismissed on the basis that the Australian Industrial Relations Commission had no jurisdiction to deal with an application by a short-term casual employee.

Although the issue of the validity of the regulations were raised, the Commission held that it was not appropriate for it to decide such issues.

However, a subsequent appeal to the Full Bench of the Commission was successful on the basis that Mr Hamzy had been wrongly excluded because the regulations were invalid.

A recent study from the Federal Department of Industrial Relations indicated that unfair dismissal cases rose sharply just before the Liberal Government was re-elected and introduced the Workplace Relations Act.

Since then the number of unfair dismissal cases had dropped from around15,000 to a new plateau of approximately 8,000 cases a year.

The Government’s other IR Bills, introduced in late February, seek to stop unions from demanding ‘service fees’, require secret ballots to be held and clarify the role of the AIRC.

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