Workchoices for Small Business

[Sam]

Hi All,

Does workchoices have rules when it comes to businesses employing staff under 100 staff members? For example, can these employers dismiss their staff without having to go through a formal process and without having to provide any notice.

I am a little confused hen it comes to workchoices. To whom does it not apply to?

Many thanks
Sam

[Ms_HR]

Hi Sam,

My understanding is that for small businesses under workchoices emplouyees to do not have the ability to make a claim for unfair dismissal. They still however have the ability to claim unlawful (discrimination etc). If you have documentated the process and justified the reasons for the termination you are in a far better position then terminating them on the spot!

In regards to notice period. That would be dependant upon the award and if they are casual, or permanent. My understanding is that you would still need to follow the necessary notice period as set out in their conditions of employment.

My thoughts would be regardless to make sure that the process is fair, just and reasonable.

From my experience of working in a larger organisation a similar situation is an employee who is in their probationary period. Under the contract of employment they can have their employment terminated without reason within 6 months of their commencement date.

However our practice is that they still attend a formal meeting where it is explained to them the reasons for the termination of their employment within the probationary period.


Hope this helps!

Regards
Ms_HR

[Sam]

Can you please advise what your knowledge is when it comes to the notice period and contracts of employment?

If a contract of employment stipulates that no notice period is required by either party would that over rule workchoices for non award employees? Does that mean that IR Act does not have any bearing on notice periods in terms of lengh of service and the contract of employment overules this?

I did not think that employers were able to terminate contracts at will but it appears as though they are able to?

[Ms_HR]

Hi Sam,

Under Workchoices the following along with the Australian Pay and Classification Scales form the Australian Fair Pay and Condtions Standard (the Standard):

These minimum conditions of employment are:

a maximum of 38 ordinary hours of work per week

four weeks of paid annual leave (with an additional week for shift workers)

ten days of paid personal/carer’s leave (including sick leave and carer’s leave), with provision for an additional two days of unpaid carer’s leave per occasion and an additional two days of paid compassionate leave per occasion, and

52 weeks of unpaid parental leave (including maternity, paternity and adoption leave).
Under Workchoices there are 5 protected conditions

It would depend what industrial instrument you were working under ie. award, awa etc however generally in regards to the above areas the more generous provision applies wether it is the standard or the agreement.

As far as I am aware it is only the above mentioned entitlements that need to be observed, however my practice is still to look at the award provisions of the relevant award (if you are working with an agreement) to see what the conditions are.

Another question to think of is that if you include no notice period, in the case that the employee chooses to leave, they have the same entitlement, which may leave yourself in a position of not having an employee to cover the position.

In the agreement that i was working with, we had a 1 week notice period for the probation period and 2 weeks once the employee was permanently employed.

A good source of information is http://www.workchoices.gov.au
this includes a phone number where you can ring to obtain advice.

In regards to terminating contract of employment at will....i think that best practice would be that you have valid reasons for the termination of employment. By having open communication between employer and employee you may be able to avoid condusion over the reasons that employment has been terminated. As i have mentioned previously in regards to small businesses employees are still able to lodge claims of unlawful dismissal in regards to termination of employemnt so best practice would be to clearly state the reasons for the termination.

Hope this helps

Regards
Ms_HR

[Sam]

Thanks for the response. I am still amazed to hear that you can terminate a contract at the drop of the hat with no notice period what so ever if a person is not engaged under an award???. This is the first time that I have ever heard of this being done and for an employer legally being allowed to do so.

[Ms_HR]

Hi Sam,

I think you need to contact the Workplace Authority to get some clarrification especially in regards to the legislation for small business.

Terminating someone at the drop of a hat, with no notice doesn't sit very well with me (personally). I think you would need to get some advice about the industrial rammifications if you choose to make the decision.

As i mentioned previously, even if your employees are non-award, i would suggest looking at the relevant award to see the provisions if you haven't expressly stated them in the the contract.

Regards
Ms_HR