Getting The Deal Through - Labour & Employment 2008.

Legislation and agencies 1 What are the main statutes and regulations relating to employment?

As Australia is a federation, employment law is governed by laws made by the parliament of the Commonwealth of Australia (federal law) as well as by parliaments of each of the states constituting the Commonwealth (state laws) and the legislative bodies of the territories (territory law).

Since 27 March 2006, the principal legislation governing employment at federal level has been the Federal Workplace Relations Act 1996, as amended by the far-reaching Workplace Relations Amendment (Work Choices) Act 2005 (the Work Choices Act) and, more recently, by the initial stage of the legislative amendments made by the federal parliament, following the election of the new Labor government in November 2007. The federal laws are intended to provide a single system for about 85 per cent of all employees.

The Work Choices Act makes radical changes in the framework for employment and industrial relations arrangements in Australia. A number of the states and trade unions instituted legal proceedings in the High Court of Australia alleging that the Work Choices Act is not constitutionally valid. This challenge was unsuccessful. For corporations, the effect is to establish a single system governing industrial law; state laws generally will have no continuing operation except in respect of areas such as anti-discrimination and occupational health and safety.

The Workplace Relations Act now provides for a limited number of minimum conditions of employment, primarily set out in the Australian Fair Pay and Conditions Standard (the Standard) covering minimum rates of pay, ordinary hours of work and various forms of leave. Actual terms and conditions will be established by alternative forms of bargaining - with unions, with employees collectively or individually through Australian Workplace Agreements. However, Australian Workplace Agreements can no longer be made; they are now replaced with Individual Transitional Employment Agreements (see 'Updates and trends').

Negotiated terms must at least comply with the newly established minimum conditions but may override current federal and state awards (made in settlement of industrial disputes by federal or state industrial tribunals). Until new agreements are entered into, current conditions in awards and current federal law agreements will continue to operate, although there are some exceptions to this general rule.

Presently, under state law, there are industrial tribunals established in each state (except in Victoria) to determine through conciliation and arbitration (or other mechanisms established by law) minimum wages and conditions of employment in specific industries and with respect to particular occupational categories.

These conditions are supplemented by collective and individual bargaining. As a consequence of the Work Choices Act, these laws now only apply to employers which are not corporations (eg, partnerships, sole traders, employees of a state). Except in some areas of public-sector employment, and in respect of employers who are not corporations, from March 2006, the effect of the Work Choices Act is to override the state systems of industrial awards and agreements and to replace them with the minimum conditions and the system established by the Work Choices Act.

2 Is there any legislation prohibiting discrimination or harassment in employment? Discrimination and harassment in employment is prohibited under a number of federal laws (covering discrimination based on race, sex, disability and age) and under laws of each of the states covering those grounds - but also numerous other grounds, such as lawful political belief or activity, trade union activity, pregnancy and several other grounds that vary from state to state. In addition, sexual harassment is specifically outlawed by both federal and state laws dealing with sex discrimination.

Under federal law, other grounds of discrimination (such as irrelevant criminal record) can be subject to investigation and conciliation, but legally enforceable remedies are not provided.

3 Is there any legislation protecting employee privacy or personnel data? I f so, what are an employer's obligations under the legislation?

There is some limited protection of employee privacy and personnel data under the Privacy Act 1998 (Cth) and similar provisions in some states.

Generally, the National Privacy Principles, made under the Privacy Act 1998, do not apply to 'employee records', subject to a number of conditions being satisfied, including that an act or practice in relation to an employee record must be directly related to the employment relationship. An 'employee record' is a record of personal information relating to the employment of the employee. It includes health information but more particularly matters such as engagement and termination, terms and conditions, salary, work performance records, union membership and so on. The 'employee records' exemption does not cover information covering unsuccessful job applicants.

Other separate specific restrictions arise in relation to use, retention and disclosure of an employee's tax file number by an employer.

More particularly, health records relating to (among others) employees are subject to specific legislative obligations under laws of some of the states (eg, Victoria and New South Wales).

4 What are the primary government agencies or other entities responsible for the enforcement of employment statutes and regulations? Under both federal and state laws, workplace inspectors are appointed to investigate complaints of breach and to enforce employment statutes and regulations. In addition, under most applicable federal and state laws, unions are entitled to institute prosecutions for breaches of some industrial and employment laws, particularly those set out in industrial awards and enterprise agreements.

Worker representation 5 Is there any legislation mandating the establishment of a works council or workers' committee in the workplace?

There is no legislation that requires a works council or workers' committees to be established in the workplace in respect of terms and conditions of employment.

However, there are some enterprise agreements that currently provide for bodies similar to, but not the same as, works councils or workers' committees. These are often called 'joint consultative committees' and their powers and composition are determined by the provisions of the individual agreement.

Under occupational health and safety legislation applicable in the states and territories of Australia, there is provision for worker representation on occupational health and safety committees in an enterprise and in other ways.

Background information on applicants 6 Are there any restrictions or prohibitions against background checks on applicants? Does it make a difference if an employer conducts its own checks or hires a third party? Background checks of applicants are permitted. They may be undertaken by the prospective employer or by a third party on behalf of the prospective employer. To the extent that information is sought from the former employers of the job applicant, common law duties arise not to provide information that is misleading and not to give it negligently, especially if it is known that the person enquiring will be relying upon the provision of that information. Federal and state law also provides for remedies in some cases in respect of misleading or deceptive conduct in connection with aspects of employment and employment opportunities.

An employer who is asked to disclose information about a former (or, indeed, current) employee should consider whether disclosure is permitted by the privacy legislation, including the National Privacy Principles, as well as common law obligations in respect of confidential information.

Some state legislation expressly requires background checks (eg, in relation to child abuse offences for employees working with children). Police checks of criminal records require a job applicant's consent.

7 Are there any restrictions or prohibitions against requiring a medical examination as a condition of employment? Generally, there are no restrictions or prohibitions against requiring a medical examination as a condition of employment. However, as disability is a prohibited ground of discrimination (including in respect of job applicants), an employer must ensure that any medical information that is provided to it in connection with a decision concerning employment is not used in an unlawfully discriminatory manner. It is possible for an employer to refuse to hire an applicant who does not submit to an examination but, so as to minimise the risk of a claim of indirect discrimination, the employer may need to ensure that the medical examination is relevant to the inherent requirements of the job.

8 Are there any restrictions or prohibitions against drug and alcohol testing of applicants? Generally, there are no restrictions or prohibitions against drug and alcohol testing of applicants. However, to ensure it avoids potential indirect discrimination issues, an employer would be prudent to ensure that the requested information in respect of drug or alcohol use is relevant to capacity and performance of the job. Subject to that limitation, an employer may refuse to hire an applicant who does not submit to an examination or test.

Some employer policies and procedures deal with random or other alcohol and drug testing not only in connection with employment but also in respect of whether it is safe for a worker to commence or continue work at particular times. Some enterprise agreements set out provisions dealing with when such testing may be used, procedures to be followed and potential disciplinary consequences.

Hiring of employees 9 Are there any legal requirements to give preference in hiring to particular people or groups of people?

Generally, there are no legal requirements to give preference in hiring to particular people or groups of people. Legislation has, however, been in force requiring preference to be given to returned servicemen (that is, veterans) in some circumstances. This has rarely, if ever, been an issue in practice. In some cases, defence force reservists have rights of reinstatement or re-employment after periods of qualifying defence service.

10 Must there be a written employment contract? I f so, what essential terms are required to be evidenced in writing? There is no general requirement for the contract of employment to be in writing; however, there may be an express provision included in an applicable industrial award or enterprise agreement.

11 To what extent are fixed-term employment contracts permissible?

Fixed-term employment contracts are permitted. There is a degree of regulation in that, under federal law and in some circumstances, a person otherwise entitled to allege unfair dismissal may be excluded from the statutory entitlements to do so if he or she is or has been employed pursuant to a fixed-term employment contract. (Such a contract expires in accordance with its terms upon a fixed date and may not be terminated earlier on notice by either party.) There is no general limit on the duration of such contracts.

12 What is the maximum probationary period permitted by law?

There is no general probationary period under federal law. Under federal law, however, the effect of providing a probationary period is to exclude the person from access to federal unfair dismissal laws during the period of probation when that period is no longer than three months and is fixed in advance. Broadly, if it is reasonable to so provide in a particular case, longer periods of probation can be established (for the purposes of operation of the exclusion from access to unfair dismissal laws).

Under an employment contract, the probationary period may be extended by agreement (or unilaterally, depending upon the terms of the contract) but such extension of the probationary period will not operate to exclude the employee from access to the unfair dismissal laws if they are otherwise applicable to him or her.

13 To what extent are post-termination covenants not to compete, solicit or deal valid and enforceable? Covenants not to compete are governed by common law and, in one state, by legislation (New South Wales). Under the common law, a covenant not to compete or not to engage in other specified activity is unenforceable unless it is reasonable in the interests of the parties and of the public. There is, therefore, no maximum period prescribed by law for such covenants; whether a covenant will be enforceable in a particular case will depend upon its terms and all relevant circumstances. Other factors relevant to enforceability include the time period of the restraint on post-employment competitive or other conduct, the geographical area of the restraint and the nature and extent of the restrained activities.

14 What are the primary factors that distinguish an independent contractor from an employee? An independent contractor is generally distinguished from an employee on the basis that the employer of an employee can control, or exercise the right to control, the manner in which work is performed. By way of contrast, an independent contractor contracts to provide an 'end result'. There are several additional factors which are taken into account in determining whether the legal status of a person is that of employee or independent contractor - including whether the putative employee has the right to delegate performance of the duties to another person, whether there is an obligation to make good any defective work or performance without cost to the principal and a range of other factors.

For some purposes, such as the obligation to pay workers' compensation insurance premiums, some state laws require an employer to treat an independent contractor as though he or she were an employee.

From 1 March 2007, the federal Independent Contractors Act 2006 has come into operation. Although it does not provide a statutory definition of an independent contractor (which is left to be determined in accordance with the common law factors referred to), it provides a system for certain individual or smallscale independent contractors to challenge their contracts on the ground of alleged harshness, in a federal court. These laws effectively override laws in some states that have previously provided for similar claims in tribunals established under state law.

In addition, from 1 March 2007, federal laws amending the Workplace Relations Act 1996 prohibit 'sham' independent contractor arrangements and certain conduct associated with such arrangements.

Foreign workers 15 Are there any numerical limitations on short-term visas? Are visas available for employees transferring from one

corporate entity in one jurisdiction to a related entity in another jurisdiction? As long as the company, as a potential employer, meets the legal and policy requirements related to sponsorship, there is no limit to the number of positions a company can sponsor. In some circumstances, the Immigration Department may approve fewer positions than requested, for example, in cases where a startup company seeks to nominate a very large number of overseas employees relative to its financial standing.

There are no special provisions for employees transferring from one corporate entity to another related entity, whether within Australian jurisdictions or between foreign and Australian jurisdictions. In all cases, when transferring to an entity with a separate legal identity, a new visa must be applied for. The only difference in applying for visas in such circumstances within an Australian jurisdiction occurs at a policy level which allows assessing officers to assume, without further enquiry, that applicants have the suitable employment history for the position.

16 Are spouses of authorised workers entitled to work? As a general rule, spousal work authorisation is available, although there may be specific conditions that apply in particular cases.

17 What are the rules for employing foreign workers and what are the sanctions of employing a foreign worker that does not have a right to work in the jurisdiction? A person will be entitled to work in Australia if they are an Australian citizen or are a 'permanent resident' or in some other way hold a visa that entitles them to undertake paid work in certain conditions. An employer who employs a person (other than a citizen or a permanent resident) must ensure that the person has a valid visa in effect and that the work restrictions attached to that person's visa are complied with; it is an offence, subject to prosecution and imposition of fines, for the employer to employ a non-citizen who does not have work rights or is in breach of his or her visa conditions.

18 Is a labour market test required as a precursor to a short or long-term visa? Generally, formal labour market testing is not required to successfully sponsor potential employees from outside Australia. However, to strengthen the prospects of securing a temporary or permanent visa for a prospective employee, employers should provide evidence that there are no appropriate candidates for the position in the local area, if that evidence is available. It should be noted that with the election of a new Labor government at the federal level, the application of the rules relating to market testing, and the rules themselves, are not entirely clear. As such advice should be sought from an immigration specialist prior to lodging any visa application.

Terms of employment 19 Are there any restrictions or limitations on working hours and may an employee opt out of such restrictions or limitations? Under the Work Choices Act, an employer can require a full-time employee who is not covered by a federal award (which may, for example, have fewer full-time hours) to work 38 hours per week and reasonable additional hours determined by a number of factors set out in the legislation, such as operational requirements of the business and the employee's family responsibilities. Subject to those limitations (which will vary from case to case), there is no statutory limitation on maximum weekly hours of work. Awards (made by industrial tribunals under the legislation prior to the Work Choices Act) generally provide for ordinary hours of work for a full-time employee but do not limit maximum hours of work. Those awards continue to operate in respect of hours of work in particular until they are replaced by workplace agreements made under the Work Choices Act. Similarly, individual and collective agreements made under the legislation prior to the Work Choices Act continue to operate (including in respect of hours of work) until they are replaced by a workplace agreement or agreements under the new legislation.

20 What categories of workers are entitled to overtime pay and how is it calculated? An employee may be entitled to overtime pay under an applicable industrial award, enterprise or other workplace agreement, or individual contract of employment including Australian Workplace Agreements and, from March 2008, Individual Transitional Employment Agreements. It is common for overtime provisions to operate in respect of hours worked in excess of the employee's ordinary weekly hours or, in respect of a day's work, for time worked outside the spread of hours within which hours paid at the ordinary time rate of pay may be worked. The rate of pay in respect of overtime varies considerably. It is generally calculated at time-and-a-half or double time - according to the number of hours worked in excess of ordinary hours and, in some cases, on the days upon which such work is performed.

As a general rule, subject to any applicable industrial award or agreement, employees at managerial level or otherwise employed under a contract that provides an annual salary are not paid overtime as their employment contract usually requires them to work such hours as are reasonably necessary for the performance of their job (subject to the limitation that the requirement can only be to work reasonable hours as determined by reference to the factors set out in the Work Choices Act).

21 Is there any legislation establishing the right to annual vacation and holidays? Under the Workplace Relations Act, there are minimum entitlements to annual leave established by the Standard; generally, an employee is entitled to four weeks' annual leave (shift workers are entitled to five weeks' leave). The Standard provides, however, that an employee may agree in a workplace agreement made under the legislation to be paid in lieu of up to two weeks of each annual accrual of four weeks. Leave accrues on a pro-rata basis. Some provisions of industrial awards and agreements provide for greater periods of leave.

Usually, an employer may require an employee to work on public holidays (eg, as overtime) unless, by reference to a range of factors set out in legislation, an employee is entitled to reasonably refuse to so work. State and territory laws provide for public holidays. An employee may refuse to work on a public holiday if to do so is reasonable in the light of a number of factors set out in the Workplace Relations Act.

22 Is there any legislation establishing the right to sick leave or sick pay? Under the Workplace Relations Act, the Standard provides for paid sick leave. The annual entitlement is 10 days and is cumulative. It includes a right to take a portion of that time as leave to care for a sick member of an employee's household. Again, some awards or other industrial instruments provide for more generous sick leave entitlements. Usually, however, an employer is entitled to require a certificate from a registered practitioner (or certain other documentation) verifying the necessity for absence from work by reason of the illness of the employee prior to being obliged to provide paid sick leave (or a similar certificate in respect of the carer's component of this leave).

23 In what circumstances may an employee take a leave of absence? What is the maximum duration of such leave and does an employee receive pay during the leave? Aside from categories of leave specifically provided by legislation or an applicable industrial award, agreement or contract of employment, there is no right for an employee to take leave of absence. Leave of absence for purposes other than annual holidays or long service leave or other forms of leave expressly provided for, may be agreed by the employer and is sometimes included in industrial instruments or contracts of employment (for example, leave for study purposes related to employment). Such leave may be unpaid or paid, according to individual arrangements. As stated in question 21, an employee may refuse to work on a public holiday if to do so is reasonable in the light of a number of factors set out in the Workplace Relations Act.

24 What employee benefits are prescribed by law? Under the Workplace Relations Act, the minimum conditions mandated by the Standard are: a minimum rate of pay for job classifications, as now established by the Australian Fair Pay Commission;

ordinary weekly hours not exceeding 38 hours per week, but with a requirement to work reasonable additional hours;

four weeks' paid annual leave (shift workers are entitled to an extra week's leave);

10 days' paid personal leave (which includes sick leave and carer's leave), plus two days' unpaid carer's leave per annum and two days' compassionate leave (in respect of death or serious injury or illness of a member of the immediate family); and

unpaid parental leave, up to 52 weeks.

Long service leave is generally provided by state legislation at varying rates. Superannuation benefits (or pension plans) are required to be provided by federal legislation (currently calculated on the basis of employer contributions of nine per cent of salary, subject to a cap).

A small number of other minimum entitlements are provided by the Workplace Relations Act (eg, meal breaks).

25 Are there any special rules relating to part-time or fixed-term employees? Generally, there are no special rules relating to part-time or fixed-term employees. There are some exceptions - for example, a fixed-term employee of a corporation with more than 100 employees may be excluded from access to an unfair dismissal claim under federal law in some cases.

Liability for acts of employees 26 In which circumstances may an employer be held liable for the acts or conduct of its employees?

Generally, an employer is liable to third parties for acts or conduct of its employees that are in the course of employment and do not constitute unauthorised criminal conduct of the employee. Taxation of employees

27 What employment-related taxes are prescribed by law? Income tax is levied under federal law in respect of (among other incomes) wages and salaries and other payments made by the employer to an employee. An employer is obliged to pay fringe benefits tax under federal law in respect of some benefits of a non-cash kind provided to an employee (for example, provision of a car). An employer is obliged under federal law to make contributions at a specified rate (and subject to a cap) to a complying superannuation fund (ie, a pension fund) in respect of each employee.

State laws require tax to be paid upon an employer's total payroll remuneration, once a minimum level of total remuneration is reached.

Under federal law, goods and services tax (GST) is levied upon fees charged by an independent contractor to an employer.

Employee-created IP 28 Is there any legislation addressing the parties' rights with respect to employee inventions? Intellectual property in Australia is governed primarily by federal law, particularly the Patents Act 1990, the Copyright Act 1968, the Designs Act 2003 and the Trade Marks Act 1995. As a general rule, any intellectual property created by an employee during the course of employment, including employee inventions, is by force of statute owned by the employer. This can, however, be varied by individual employment arrangements.

Business transfers 29 Is there any legislation to protect employees in the event of a business transfer? A business transfer generally involves a sale of assets of a business or a sale of shares in the company which is operating the business. This is dealt with under the Workplace Relations Act 1996 (depending on the industrial instrument, some state laws may apply to some employees involved in a business transfer).

When the shares in a company are sold or transferred, an employee's contract of employment, as at the date of sale, will continue to operate until it is renegotiated. There is no termination of employment arising solely from the change in the ownership of the shares in the company. An employee's entitlements are also unaffected, as the transfer only affects the ownership of the company, not the legal identity of the employer.

On the other hand, where a sale of assets takes place, an employee's employment contract generally will cease with the old employer by way of termination (unless the former owner wishes to, and lawfully may, employ the employee elsewhere in a part of its business which has not been sold, for example, by way of redeployment). Where the employee's employment terminates, the employee may subsequently commence employment under a new contract with the new owner, if it has offered employment (the new employer).

Further, under the Workplace Relations Act, the new employer will generally be bound by the industrial instrument (such as a workplace agreement made under the Act) which applied to the employee immediately prior to the sale of assets, for a maximum period of 12 months. However, this general rule does not apply in every instance; for example, if no employee of the vendor employer accepts any offer of employment that may be made by the new owner or employer, then any industrial instrument that applied to the employees of the vendor employer engaged in the business that has been sold will not apply to the new owner of the business.

As an employee's contract of employment usually terminates when a sale of assets takes place, as a general rule an employee is entitled to be paid an amount in lieu of any accrued entitlements in respect of their employment, calculated as at the date of termination, such as annual leave. New entitlements to entitlements for annual leave will then accrue from commemncement under the new contract of employment. For some purposes, the period of service with the former employer is required by law to be recognised by the new owner (for example, in respect of long service leave). However, personal or carer's leave (including sick leave) are generally dealt with under the new contract of employment and any applicable industrial instrument.

As a general rule, outsourcing does not constitute a sale of business for the purpose of these 'transmission of business' rules under the Act. However, some industrial agreements entered into by some employers provide for certain protections for employees in the case of outsourcing.

Termination of employment 30 May an employer dismiss an employee for any reason or must there be 'cause'? How is cause defined under the applicable statute or regulation? There is no general common law obligation upon an employer to have a reason or 'cause' to dismiss an employee; under the common law of the contract, the employer need not have cause to terminate the employment of an employee if the requisite period of notice to terminate the contract is given.

If the employer wishes to rely upon grounds for summary dismissal (ie, termination of the contract without notice for 'cause'), then the employer must be able to show that the specific cause (such as misconduct) warranting summary dismissal arises in the circumstances.

The entitlements of the employer at common law have been modified by legislation. Now, an employer with more than 100 employees may be found to have dismissed an employee unfairly if the employer did not have a valid reason for termination related to the employee's capacity or conduct (including its effect on the safety and welfare of other employees) or if a number of procedural steps have not been taken (eg, if the termination relates to unsatisfactory performance by the employee, whether the employee has been warned about that unsatisfactory performance before termination).

Employers that are corporations are not subject to the federal unfair dismissal law if they have 100 or fewer employees.

In addition, it is unlawful to dismiss an employee on certain grounds (for example, temporary absence from work because of illness or injury as defined in the legislation).

State laws provide employees with access to unfair dismissal claims in some cases. These state laws now do not operate in respect of employees of corporations and in some other cases, as a consequence of the Work Choices Act.

31 Must notice of termination be given prior to dismissal? May an employer provide pay in lieu of notice? Subject to any greater period of notice required by his or her contract of employment, under the Workplace Relations Act, an employee must be given the required period of notice (up to at least four weeks, depending upon years of service), unless the employee has been paid the required amount of compensation instead of notice or unless the employee is guilty of serious misconduct.

An additional period of notice is required for employees entitled to the benefits of the Workplace Relations Act, if they are over 45 years of age and have had at least two years of continuous service. Pursuant to custom and practice or a term of an award or agreement, an employer may provide pay in lieu of notice, subject to any express contractual terms.

32 In which circumstances may an employer dismiss an employee without notice or payment in lieu of notice? An employer may dismiss an employee without notice (or payment in lieu of notice) in the case of serious misconduct - that is, 'misconduct of such a nature that it would be unreasonable to require the employer to continue the employment of the employee concerned during the required period of notice' (Workplace Relations Act).

In respect of any employee not covered by the Workplace Relations Act, the employer may dismiss the employee on grounds which warrant summary dismissal (such as serious misconduct or other breach of the employment contract of a kind that is fundamental to the relationship of employer and employee).

33 Is there any legislation establishing the right to severance pay upon termination of employment? How is severance pay calculated?

There is no federal legislation establishing a right to severance pay. Entitlements to severance pay are frequently provided by the terms of industrial awards, enterprise agreements and the individual contracts of employment and employer policies.

The method of calculation of severance pay and its quantum varies considerably but most commonly is determined by reference to years of service. Awards of the Australian Industrial Relations Commission include severance pay provisions depending upon the years of service.

An employer must also provide the minimum period of notice (calculated in accordance with years of service); see question 31.

34 Are there any procedural requirements for dismissing an employee?

If an employee falls within the federal unfair dismissal laws (generally those employed by a corporation with more than 100 employees), it is relevant to the fairness of dismissal to consider whether the employee was notified of a reason relating to his or her capacity or conduct, given an opportunity to respond and warned about any unsatisfactory performance.

There is no requirement for approval from a government agency prior to dismissal of an employee. If, however, an employer decides to terminate the employment of 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons, under the Work Choices Act, an employer must give notice to Centrelink (a government agency) or to the secretary of the Department of Employment and Workplace Relations. The employer cannot terminate the employment until that notice has been given.

35 In what circumstances are employees protected from dismissal?

All employees covered by the Workplace Relations Act cannot be terminated unlawfully (ie, on one of the specific grounds such as race, sex and trade union activity). In addition, an employee is protected from unfair dismissal if he or she is employed by a corporation with more than 100 employees.

An employee cannot make an unfair dismissal claim if operational reasons (as defined in the law) form part of the reasons for termination.

36 Are there special rules for mass terminations or collective dismissals? Under the Work Choices Act, the Australian Industrial Relations Commission may make a range of orders where an employer has failed to consult a trade union about terminations, where the employer has decided to terminate the employment of 15 or more employees for reasons of an economic, technological, structural or similar nature (or for reasons including such reasons). The employer is obliged to give an opportunity to each trade union to consult with it on measures to avert the terminations (or minimise them), as well as measures to mitigate the adverse effects.

Although the Commission has power to make whatever orders it thinks appropriate in the public interest to put the employees in the same position (as nearly as can be done) as though the employer had complied with its obligations, those powers are substantially limited - they do not include, for example, the power to reinstate the employee or require payment of an amount in lieu of reinstatement.

Dispute resolution 37 May the parties agree to private arbitration of employment disputes? In some circumstances, parties can agree to private arbitration of employment disputes. The Workplace Relations Act provides for a range of dispute settling procedures, including, but not limited to, private arbitration. The former powers held by the Australian Industrial Relations Commission in respect of compulsory conciliation and arbitration have generally been abolished by the Work Choices Act, except in specific cases (eg, after termination of bargaining where there is a risk to public health or safety).

38 May an employee agree to waive statutory and contractual rights to potential employment claims? Generally, an employee cannot agree to waive statutory rights to potential employment claims. Under federal law, although there is no express prohibition on waiving statutory and contractual rights in respect of potential employment claims, it is not possible for an employee to waive agreement to the minimum entitlements provided by the Standard. More generally, such waivers would be unenforceable where to do so would contradict the entitlement given by statute. Such waiver may, however, be enforceable in the context of an agreement to settle a dispute over an employment claim. A waiver of a purely contractual right could be enforced if it were given some circumstances (eg, settlement of a disputed entitlement).

Some state laws (eg, in respect of long service leave) expressly prohibit 'contracting out'.

39 What are the limitation periods for bringing employment claims?

Generally, any employment claim must be brought within six years of it arising. Such a claim may be pursued by the individual employee, the union of which he or she is a member or a workplace inspector. In some cases, penalties may be sought for infringement of statutory and other entitlements (other than purely contractual entitlements) as well as recovering amounts in compensation. For other claims (eg, unfair dismissal and discrimination), the limitation periods are generally considerably shorter.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Mr Bruce Moore

Maddocks

Angel Place

123 Pitt Street

Sydney

NSW 2000

AUSTRALIA

Fax: [phone]

E-mail: [e-mail]

URL: www.maddocks.com.au

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