The Federal Government's new unfair dismissal laws will have a significant impact on small-to- medium businesses according to leading Australian employment lawyer Allan Drake-Brockman.
Under the new laws, corporations with up to and including 100 employees will be completely exempt from unfair dismissal laws.
Mr Drake-Brockman who is National Workplace Relations Partner at Gadens Lawyers said that this exemption had already attracted widespread comment.
"There are a number of other significant changes to the unfair dismissal regime which will have far-reaching effects.
"One of the most important anticipated changes is that the Government is likely to prohibit collective and individual workplace agreements from allowing for a separate unfair dismissal remedy," Mr Drake-Brockman said.
"If unfair dismissal remedies are prohibited in workplace agreements, employees still have the option of going to the Australian Industrial Relations Commission with an unfair dismissal claim, but can only do so if they are employed by a corporation with over 100 employees".
"Another important aspect of the new laws is that employees in corporations of any size will not be able to bring an unfair dismissal claim if the employer can show that their employment was terminated because of what the Bill describes as 'genuine operational reasons'"
"The genuine operational reasons provision is very broadly drafted and includes economic, technological or structural reasons" said Mr Drake-Brockman
"This would allow an employer to successfully counteract an unfair dismissal claim in nearly all situations which result in a genuine redundancy".
"The laws will also give the AIRC power to dismiss an unfair dismissal claim without a hearing if the Commission finds that it is frivolous, vexatious or lacking in substance."
Mr Drake-Brockman said that this would overcome one of the biggest problems for employers under the current laws being the time and cost involved in defending claims which lacked any merit whatsoever.
"Many of these types of claims are designed to simply get a payout from an employer who did not want to get bound up in the expense of a court case".
These settlements are an unfair burden on employers who are effectively blackmailed into paying out more than the ex-employee may otherwise be entitled to under the law.
Mr Drake-Brockman noted that an employee who was terminated or disadvantaged by an employer for a discriminatory reason - for example, on the basis of sex, race or disability - would still be able to access "unlawful termination" remedies under the new workplace relations laws or seek redress under State and Federal anti-discrimination laws.
Undoubtedly with the demise of unfair dismissal laws, there will be an increase in discrimination claims.
15/11/2005 - 13:44
15/11/2005 - 13:44