“The Fair Work Act 2009 (Cth) provides all employees with a clear and accessible right to protection from unfair dismissal. The protection it provides give the right balance to the rights of employees and the rights of employers”. Critically discuss.
In the year 2009, the Fair work act was introduced by the Labour government so that they could replace the less popular work choices legislation. The act was divided into two categories, firstly the right of employees and secondly the protection of employees. The fair work act refers to the “moral or legal entitlement to have or do something with the specific emphasis on the legal entitlement, whilst an employee’s protections afforded are a legal or other formal measure intended to preserve civil liberties and rights” (Regan & Lee, 2015). The fair work act will provide a balanced framework for the workplace relations which will include the national economic prosperity of all the Australian workers. The act will provide laws that are fair to working Australian workers, the will guarantee safety for enforcing minimum terms and take care of the minimum wage orders also. The act will also assist the employees on how to balance work and family by providing them with flexible working arrangements. The aim of this essay is to critically discuss that The Fair Work Act 2009 provides all employees with a clear and accessible right to protection from unfair dismissal. “The protection provides give the right balance to the rights of employees and the rights of employers” (Crowe et al, 2017).
Key features of the unfair dismissal provisions
An unfair dismissal is when an employee is dismissed from their job in an unjust or unreasonable manner. The fair work act has considered that an employee is unfairly dismissed when
A worker is dismissed
The dismissal was unreasonable or harsh
The dismissal was not under the case of genuine redundancy
The worker worked for a small business and the dismissal was not done as per the small business dismissal code (James, & Ombudsman, 2015).
The remedies for unfair dismissal have been an essential feature of the federal industries since 1993 (Higgins, 2018) An unfair dismissal are initially conveyed in a telephone conference between the employer and the employer dismissed, if the conversation is not successful then the claim will proceed to another hearing for the member who belongs to the fair work commission this member will have the right to determine whether the dismissal was harsh or unreasonable as per the reference of statutory criteria and the guiding principles which should be unbiased and fair for both the employee and the employer (Ross, 2016)
Not all the employees are eligible to make an unfair dismissal claim. To make a dismissal claim an employee has to serve the minimum employment period mentioned in the offer letter, secondly of the employee annual earning at the time of dismissal is more than the statutory high income and if they are not covered under the industrial award or agreement then they are not allowed to claim unfair dismissal under the fair work act 2009 (Regan & Lee, 2015).
The unfair dismissal provisions are among the most controversial discussion from the employer’s point of view. The theory states that the agreement can be made without the trade unions but this option is rarely used. Some of the provisions regarding the unfair dismissal cover small business which includes the minimum employment period to claim unfair dismissal which covers less than 15 employees. Basically, an employer can dismiss an employee for causing theft in the organizing or fraud for instance. Secondly, there is certain code which the employers should follow. To minimize the burden on the employer there should be certain evidence provided like copies of a written warning, checklist, statement of termination along with a witness statement with his/her signature. The number of claims for the unfair dismissal has increased since 2009 the fair work act (Higgins, 2018). There were around 12000 employees for unfair dismissal and the act led to increase by 50% over the last year. Basically, the number of unfair dismissals increased even further because the employees kept getting familiar with the fair work act and its provisions along with the small business fair dismissal code which did not prove to be much effective that it was expected to be by the government. Apart from the rise in the number of unfair dismissal decisions made by the fair work act in Australia show some more interesting facts. For instance, a factory employee refused to wear his safety glasses while working in Albury Wodonga law (Pekarek et al, 2017). Because this employee violated the safety law hi was dismissed by the employer and his reinstatement stated that this employee couldn’t find another job while he also had to take care of his wife & children. Similar stories came up when the employers claimed for unfair dismissal so that they could claim more money.
Fair Work Act and Employee promotes flexibility, fairness along with advance employment security.
The fair work act 2009, enables fairness at work along with prevention of any kind of discrimination related to the right of being represented, protection against the unfair dismissal, providing effective measures to solve any kind of organizational disputed between the employee and the employer. The act helps to attain productivity and fairness by focusing more on the enterprise level collective bargaining constructed by good trust bargaining obligations and other governing rules & actions (Ross, 2018). The fair work act provides a legislative framework which promotes flexibility in business while also promoting the economic growth, rights of an employee, job security, and flexible working conditions for employees. A workplace with laws which are fair to the working people in Australia and are also flexibly promoting the economic growth of Australia considering Australia’s international labour obligations and also helping the workers or employees to balance their work & family by providing them with flexible working arrangements (James, & Ombudsman, 2015). For instance, the firm can provide an extension of the parental leave taken by an employee and the right to attain flexible working condition & arrangement while also being committed towards the work.
The fair work act tackles the increase in hassles related to job insecurity by providing a casual contract to the workers which gives them the power and right to change a non-secured job into a secured employment. Also, it enforces the right to attain more flexible working conditions for part-time workers as well as a full-time basis, even for small-scale industries. An employee on casual contract can ask their employer to change them to a secure job or employment. An employee who is eligible to make the secure employment should make sure that the details are mentioned in writing and are handed over by the employer within 21 days. If the request is not accepted by the employer then the employee must also ask for a written application related to the refusal of job security. This application is then passed on to the member of the fair work act commission as an issue related to “secure employment order “to maintain the secure employment arrangements (Crowe et al, 2017).
One of the main goals of the fair work act was to enhance the working condition of the employees in Australia related to the working hours, flexibility, working conditions, unfair dismissal, and job security. “It’s the undermined rights of workers giving them significantly less in control of their own workplace choices and allowing unfair dismissals to go unchecked.” (Stewart, 2016). The earlier legislation was quite strict about the trade union interaction with the organizations which was not encouraged by the employees and the industrial relations law (Pekarek et al, 2017). But the fair work act supports not only the trade unions but also encourages the industrial agreements and the right to organize. The employees can now freely bring their representatives to the organizations talk to them, sort everything out but providing a notice 24 hours in advance.
The fair work act 2009 has a significant impact on the rights of Australian employees. The act has been positive in terms of protection of the rights of union participation without the fear of the higher authorities. But along with the positive impact, there is also a negative effect because the employees are misusing it to claim more amount from their organizations. The fair work act still has some flaws like the need for a further improvisation to allow the employees the confidence to build a work-life balance for them. The act has a limited impact on the rights of the employee when it comes to flexible working conditions because a worker cannot claim it if his children are over 5 years of age (Ross, 2018). The industrial law in Australia still needs some improvement & development to make sure that the workforce should be supported in an appropriate way. Therefore the areas related to the employee experienced only limited impact on their rights of protection because of which they need some more legislative amendments.
Crowe, J., Gray, A., Wolf, G., Creighton, B., McCrystal, S., Dyer, A., & Bevitt, N. (2017). the Sydney law review.
Ross, A. (2018). Workplace law: Indemnification of personal penalties: A golden ticket out of legal obligations?. Proctor, The, 38(1), 36.
Higgins, R. C. (2018). INDUSTRIAL RELATIONS: FAIR WORK ACT 2009 (CTH)-ENTITLEMENT OF INDUSTRIAL ASSOCIATION TO REPRESENT INDUSTRIAL INTERESTS OF PERSONS-FAIR WORK (REGISTERED ORGANISATIONS) ACT 2009 (CTH).
Pekarek, A., Landau, I., Gahan, P., Forsyth, A., & Howe, J. (2017). Old game, new rules? The dynamics of enterprise bargaining under the Fair Work Act. Journal of Industrial Relations, 59(1), 44-64.
Regan, L., & Lee, C. (2015). Workplace law: Review of the fair work act: What will change?. Proctor, The, 35(4), 38.
Stewart, A. (2016). Continuity and Change in Australian Labour Regulation: Work Choices, Fair Work and the Role of the ‘Independent Umpire’.
Ross, A. (2016). Termination gets personal: Employee circumstances can make the dismissal unfair. Proctor, The, 36(2), 30.
James, N., & Ombudsman, F. W. (2015). Commonwealth of Australia.