Find below a collection of questions and answers relating to employment and workplace law.

More questions and answers are available for employers and employees.

With changes to wrongful dismissal laws for companies employing fewer than one hundred persons, is “procedural fairness” still necessary?

Yes, and it is, in all probability, a “term implied by law” in a contract of employment. There are a number of Federal Magistrate Judgments and a suggestion in a High Court Judgment in 2005 which indicates that Courts will imply this term.

If the wrongful dismissal provisions continue to apply to a company, what are the implications for redundancy?

Redundancy is simply a reason for termination. An employee may claim that they have been selected for redundancy for unfair or harsh reasons. “Procedural fairness” is therefore necessary.

Will State laws continue to have force and effect in the  workplace?

State Occupational Health Laws will continue to apply, which could have an overriding influence on any Federal agreements that, say, removed provisions for rest breaks or any other aspect that could be invoked as a “safety” issue.

Will the Unfair Contracts jurisdiction disappear?

Yes, except where the applicant is not an employee but a contractor, or where the employer is not a corporation. This will have the effect of “driving” more employment disputes into the Common Law Courts or the Federal Court in its Trade Practices jurisdiction.

Is the new legislation Constitutional?

Probably yes - when it provides for the corporations power of the Constitution to determine terms and conditions of employment for the employees of corporations.

Probably not - where it purports to use that power to regulate Trade Unions and Employer Associations.

Discussion of some aspects of the WorkChoices Legislation and its Constitutionality can be seen in Issue Three of the McArdle Legal Newsletter, see the News section of the website.

Workplace Discrimination