Fair Work News

Redundancy Laws

Fair Work Act 2009 s.389 states

An unfair dismissal application cannot be made if the dismissal was a case of genuine redundancy.

A dismissal is a case of genuine redundancy when:

1) The employer no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise,

2) The employer has complied with any obligation imposed by an applicable modern award or enterprise agreement to consult about the redundancy.

3)A dismissal is NOT a case of genuine redundancy if it would have been reasonable in all of the circumstances to redeploy the person within:

the employer’s enterprise, or

the enterprise of an associated entity of the employer.

IF the employer has not complied with the “three arms” to S389 then it is not a genuine redundancy and a unfair dismissals or general protections application can be lodged, be aware of the very strict 21 days from your termination to do so.

What is a Genuine Consultation?

Consultations must be genuine and not perfunctory. They should be meaningful and engaged in before an irreversible decision to terminate has been made. The purpose of a consultation is to facilitate change where that is necessary, but to do that in a humane way which also takes into account and derives benefit from an interchange between worker and manager.

Consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and sometimes even by its withdrawal. Any right to be consulted is something that is indeed valuable and should be implemented by giving those who have the right an opportunity to be heard at the formative stage of proposals – before the mind of the executive becomes unduly fixed.

Commentary

A redundancy can be a bad redundancy, but still be a genuine redundancy, Employers make the wrong Employees redundant all the time. What they cannot do is target you because you have complained about something, you’ve been on Workcover,

your pregnant, to simply replace you with a lower paid worker, to simply rename the position. The list is endless. You do not have a position for life, its all about the reason, off course the Employer will always say it’s the recession, the technology has changed, upskilling. etc, etc.

It’s what you know. (check on-line to see if your position or similar position is advertised). Why are you targeted? With the current recession, it can be sometimes referred to as pay back, perceived troublesome Employees have to go, older, injured, ill, ones insisting on being paid properly.

Why if you’re a good loyal, productive employee would they really get rid of you. It’s all about the motive, as to why would an Employer go to the time and cost to get you out of their business. Give us at A Whole New Approach P/L a call to work through your situation.

Consultation is more than the Employer telling you they are making you redundant and they have had a look around and there is nothing else for you. Consultation has to be legitimate, in advance of the potential redundancy, and allows for your input, and the Employer has to consider your input, before the decision is made.

Maybe you will take a lower position, maybe you have experience, skills or qualification’s the Employer is unaware of, it’s your absolute right to have those discussions in advance of the potential redundancy.

Redeployed, if its larger company clearly there may be options, the Employer may still be employing casuals, contractors, staff still in their probation period, why weren’t you offered these positions, you may have been prepared to travel, reskill with little effort, that’s why consultation is important.

Some Employers indicate now that we are making you redundant, can you resign, under no circumstances do you resign, get advice first.

Redundancy entitlements can be allot of money, explore your options.

This commentary is short and meant to start the process of you deciding is there anything you can do about your redundancy situation. Ring us anytime,

“Knowledge is power, without it we become ignorant towards the truth.”
― Hopal Green

DISCRIMINATION OF THE POOR IN THE WORKPLACE

What is discrimination of the poor in the workplace?

In Australia, the legal definition of direct discrimination is being subjected to ‘less favourable treatment as a result of possession of a protected attribute’. The ‘protected attributes’ include race, age, sex, sexuality and others, but importantly, does NOT include poverty or socio-economic status.

We at A Whole New Approach firmly believe that this is a serious cause for reform in Australian law, as once again, those who are under-privileged socioeconomically, are being discriminated. Time and time again we are finding Employers are mistreating employees, through bullying, harassment, adverse actions, unfair and unlawful dismissals, on the basis that poor employees, or implied poorer employees do not have the means, resources, education, and family support to challenge the Employer though the Fair work Commission and the various equal opportunity and human rights commissions. This is demonstrated time and time again where specific groups are targeted, young employees from broken homes, females who are victims off domestic violence, older divorced males, etc.

What we as a company understand, but most fail to realise (particularly those that have only known privilege), and what the legislative council needs to consider, is how interconnected lower socio-economic status and poverty is linked to the already instituted protected attributes under Australian law.

Poverty & Exclusion

Multiple studies have shown how highly correlated growing up poor is with other disadvantages, such as its effect on educational achievement, physical and mental health, healthy social interactions and behaviour, family stability – the list goes on. All these consequences that are significantly linked to poverty, or lower socio-economic status, each potentially have a rolling effect to encouraging social exclusion of those that are less fortunate. This follows into roles in the workplace.

A look into mental health service use in Australia very clearly shows the significant disparity between those of low socio-economic backgrounds and those from higher. The former show higher reports of complex mental disorders like ADHD, anxiety, depression and various other conduct disorders and as a result, more commonly reach out to these services provided. Other factors frequently related to poverty such as absent parents, less supportive schools and communities, all have shown causative relations to poorer mental health.

As previously mentioned, mental health is not the only thing detrimentally affected by poverty. Too many studies have pointed out that being of lower socio-economic class has significant associations with poorer physical health status, even mortality. The stress of paying ordinary household bills may already be a heavy burden on those that have less, then there is the added burden of deteriorating health and medical bills, which then in turn attracts even more illnesses. Example is low socio-economic groups, are forced to retire earlier from work due to poor health, and clearly follows less superannuation to support themselves.

Socio-economic associations even have a negative impact on academic attainment throughout one’s life. Alarming observations include seeing children of impressively high intelligence but lower wealth at the age of 3, being completely taken over by those of significantly lower intelligence but higher wealth, by the age of 5. Socio-economic class continues to be a dragging weight to academic achievement, whereas wealth affords more supportive and well-resources institutions to boost academic success. Quality education has many different implications; such as better-paying jobs which would help end the cycle of poverty, less stressors in life which would lead to better overall health… The benefits continue while those with lower education as a result of poverty, continue to lag farther and farther behind. 

This article only briefly attempts to paint the picture of the vicious cycle of being poor, and how important it is to realise these realities of how it impacts workplace behaviour. Even if being poor – and its very real consequences – are effectively ignored by the law, A Whole New Approach will do our best to have your pain and suffering recognised in the eyes of the law and by the Employer and persons that has caused you this detriment. We recognise your pain, will fight for your rights and do our utmost to be your best advocate.