CDD regulados: No

Razones de utilización legítima de CDD: sin restricción

Número máximo de CDD consecutivos: sin restricción

Remarks

No statutory limitation. Subject to courts' findings.

Duración máxima acumulativa de CDD consecutivos: sin limitación

Remarks

No statutory limitation. Subject to courts' findings.

% de trabajadores bajo CDD: 5.2

Remarks

OECD statistics, last estimates for 2006, based on the following definitions:

"Temporary worker: The sum of: 'Fixed term contract' and 'Seasonal workers'.
Fixed term contract workers cover all employees working on a fixed term contract. Seasonal workers cover all employees whose expected duration of main job was less than one year with Seasonal/temporary/fixed contract supplied as the reason".

(Available at: http://www.oecd.org/document/34/0,3343,en_2649_33927_40917154_1_1_1_1,00.html#temporary)

Duración maxima del periodo de prueba (en meses): 12 meses

Remarks

There is no statutory probationary period in the FWA.
However, according to s382, a national system employee is protected from unfair dismissal and is therefore eligible to make an application for unfair dismissal if he or she has completed "the minimum employment period"..
The minimum employment period is defined in s383 FWA as follows:
- 6 months if the employer is not a small business employer (15 or more employees) or,
- 1 year if the employer is a small business employer (less than 15 employees).

Obligación de motivar el despido: Si

Remarks

The FWA does not establish as such a general obligation to provide reasons before any dismissal. However, this obligation is implied since notification to the employee is one of the criteria to be considered by Fair Work Australia (national workplace relations tribunal) when assessing whether the dismissal was harsh, unjust or unreasonable (= test for unfair dismissal).
S387 provides that "In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take account:
(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason ; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person, whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant."

Note that the harsh, unjust or unreasonable test does not apply to small business employers (less than 15 employees).
It is sufficient for those employers to comply with the Small Business Fair Dismissal Code:
For dismissals other than summary dismissals, "the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response.
Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations."

Motivos autorizados (despido justificado): cualquiera justa causa

Remarks

See s385 to s389 FWA that set up the elements that make up an unfair dismissal.
Consequently, a fair dismissal means:
1) a dismissal which was not harsh, unjust or unreasonable; and
2) a dismissal which was consistent with the Small Business Fair Dismissal Code; and
3) the dismissal which was a case of genuine redundancy
.

1) s387 sets out the criteria to be considered by the competent body (Fair Work Australia) when assessing whether the dismissal was harsh, unjust or unreasonable.
This includes whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees) in addition to other factors related to procedural fairness.

2) Dismissal consistent with the Small Business Fair Dismissal Code (applicable to employers with less than 15 employees).
This code regulates summary and other dismissals.
- With regards to summary dismissal, the code stipulates that: "It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal".
- For other dismissals, the code provides for an obligation to give the employee a reason why he or she is at risk of being dismissed. "The reason must be a valid reason based on the employee's conduct or capacity to do the job". In addition, for the dismissal to be fair, the employer must observe procedural requirements (prior warnings, opportunity to respond and giving a chance to rectify the problem).
(see s388 FWA and Small Business Fair Dismissal Code)

3) Fair dismissal by means of genuine redundancy (s389 FWA):
There is a case of genuine redundancy if:
"(a) the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise (= fair reason); and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy (= procedural fairness)"

Motivos prohibidos: estado civil, embarazo, licencia de maternidad, responsabilidades familiares, presentación de una queja contra el empleador, enfermedad o accidente profesional temporal, raza, color, sexo, orientación sexual, religión, opinion política, origen social, edad, afiliación sindical y actividades sindicales, discapacidad, licencia paternal, licencia de adopción

Remarks

Part 3-1 of the FWA contains a set of general protections against discriminatory or wrongful treatment which includes but is not limited to protection against dismissal on certain grounds. See in particular:
- s340 FWA that prohibits adverse action (which includes dismissal) against another person in relation to the exercise of workplace rights (as defined in s341 FWA);
- s346 FWA that prohibits adverse action (which includes dismissal) against another person in relation to industrial activities;
- s351 FWA on discrimination;
- s352 FWA on prohibition of dismissal on the grounds of temporary absence from work because of illness or injury.
Employees who believe to have been dismissed in contravention with the "general protections provisions" of the Act, can apply to Fair Work Australia to deal with the dismissal.

The Act also contains a special provision on unlawful termination: s772 FWA makes it unlawful for an employer to terminate an employee's employment for certain reasons. However, employees are barred by s723 from lodging a complaint of unlawful termination if they are entitled to make a general protections court application in relation to the conduct. Therefore, unlawful termination applications are only available to workers employed by Western Australian corporations whose main activity is not trading or financial or Western Australian sole traders, partnerships, or other unincorporated entities.

Trabajadores que gozan de una protección particular (fuero):

Remarks

No statutory provisions providing for special protection found in the legislation reviewed.

Forma de la notificación del despido al trabajador: escrita

Remarks

s117(1) FWA: "an employer must not terminate an employee's employment unless the employer has given the employee written notice of the day of the termination".

Plazo de preaviso:

Remarks

Notice of termination is - together with other rights and entitlements set out in part 2.2 of the FWA - part of the new "National Employment Standards", in force since 1st January 2010.
s117(3) establishes the statutory minimum notice periods which varies according to the length of service and the age, as follows:
- If the employee has been continuously employed for not more than 1 year, the notice period shall be 1 week;
- If the length of service is more than 1 year but not more than 3 years, the notice period shall be 2 weeks;
- If the length of service is more than 3 year but not more than 5 years, the notice period shall be 3 weeks;
- If the length of service is more than 5 years, the notice period shall be 4 weeks.

In addition, the notice period shall be increased by 1 week if the employee is over 45 years old and has completed at least 2 years of continuous service with the employer at the end of the day the notice is given.

However, according s123 FWA, the provisions on notice of termination do not apply to the following employees:
- Employees not covered by Division 11 of the FWA (both notice of termination and redundancy pay):
"(a) an employee employed for a specified period of time, for a specified task, or for the duration of a specified season;
(b) an employee whose employment is terminated because of serious misconduct;
(c) a casual employee;
(d) an employee (other than an apprentice) to whom a training arrangement applies and whose employment is for a specified period of time or is, for any reason, limited to the duration of the training arrangement;
(e) an employee prescribed by the regulations as an employee to whom this Division does not apply.
(2) Paragraph (1)(a) does not prevent this Division from applying to an employee if a substantial reason for employing the employee as described in that paragraph was to avoid the application of this Division"
- Other employees not covered by notice of termination provisions:
"(b) a daily hire employee working in the building and construction industry (including working in connection with the erection, repair, renovation, maintenance, ornamentation or demolition of buildings or structures); or
(c) a daily hire employee working in the meat industry in connection with the slaughter of livestock; or
(d) a weekly hire employee working in connection with the meat industry and whose termination of employment is determined solely by seasonal factors; or
(e) an employee prescribed by the regulations as an employee to whom that Subdivision does not apply."

duración de servicio ≥ 6 meses:

  • Todos: 0.25 meses.

duración de servicio ≥ 9 meses:

  • Todos: 0.25 meses.

duración de servicio ≥ 2 años:

  • trabajadores ≤ 45 años: 0.5 meses.
  • trabajadores > 45 años: 0.75 meses.

duración de servicio ≥ 4 años:

  • trabajadores ≤ 45 años: 0.75 meses.
  • trabajadores > 45 años: 1 meses.

duración de servicio ≥ 5 años:

  • trabajadores ≤ 45 años: 1 meses.
  • trabajadores > 45 años: 1.25 meses.

duración de servicio ≥ 10 años:

  • trabajadores ≤ 45 años: 1 meses.
  • trabajadores > 45 años: 1.25 meses.

duración de servicio ≥ 20 años:

  • trabajadores ≤ 45 años: 1 meses.
  • trabajadores > 45 años: 1.25 meses.

Indemnización sustitutiva de preaviso: Si

Remarks

s117(2) b) FWA.

Notificación a la administración: No

Notificación a los representantes de los trabajadores: No

Aprobación de la administración publica o de organismos judiciales: No

Acuerdo de los representantes de los trabajadores: No

Definición de despido colectivo (número de empleados afectados): Dismissal of 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons.

Remarks

See s530 FWA.

Note that the specific rules on notification and consultation in case of collective dismissal do not apply in relation to any of the following employees (s534 FWA):
"(a) an employee employed for a specified period of time, for a specified task, or for the duration of a specified season;
(b) an employee who is dismissed because of serious misconduct;
(c) a casual employee;
(d) an employee (other than an apprentice) to whom a training arrangement applies and whose employment is for a specified period of time or is, for any reason, limited to the duration of the training arrangement;
(e) a daily hire employee working in the building and construction industry (including working in connection with the erection, repair, renovation, maintenance, ornamentation or demolition of buildings or structures);
(f) a daily hire employee working in the meat industry in connection with the slaughter of livestock;
(g) a weekly hire employee working in connection with the meat industry and whose dismissal is determined solely by seasonal factors;
(h) an employee prescribed by the regulations as an employee in relation to whom this Division does not apply.
(2) Paragraph (1)(a) does not prevent this Division from applying in relation to an employee if a substantial reason for employing the employee as described in that paragraph was to avoid the application of this Division."

Consultación previa con los sindicatos (representantes de los trabajadores): Si

Remarks

s531(3) FWA

Notificación a la administración: Si

Remarks

s530 FWA: mandatory notification of the proposed dismissals to the Chief Executive Officer of the Commonwealth Services Delivery Agency (Centrelink).

Notificación a los representantes de los trabajadores: Si

Remarks

s531 (2) FWA: notification to each registered employee association of which any of the employees is a member, and that is entitled to represent the industrial interests of that member.

Aprobación de la administración publica o de organismos judiciales: No

Acuerdo de los representantes de los trabajadores: No

Reglas de prioridad para los despidos colectivos (consideraciones sociales, edad, años de servicio): No

Obligación del empleador de considerar solucionés alternativas al despido (transferencia, formación...): Si

Remarks

s531(3) FWA: The employer shall give each registered employee association of which any of the employees was a member, and that was entitled to represent the industrial interests of that member, an opportunity to consult the employer on:
(i) measures to avert or minimise the proposed dismissals; and
(ii) measures (such as finding alternative employment) to mitigate the adverse effects of the proposed dismissals.

Reglas de prioridad para la re-contratación: No

duración de servicio ≥ 6 meses: 0 meses

duración de servicio ≥ 9 meses: 0 meses

duración de servicio ≥ 1 año: 0 meses

duración de servicio ≥ 4 años: 0 meses

duración de servicio ≥ 5 años: 0 meses

duración de servicio ≥ 10 años: 0 meses

duración de servicio ≥ 20 años: 0 meses

Indemnización por despido por razones económicas:

Remarks

s119 FWA provides that "an employee is to be paid redundancy pay by the employer if the employee's employment is terminated:
(a) at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b) because of the insolvency or bankruptcy of the employer."

The amount of the redundancy pay varies according to the employee's period of continuous service as follows:

- if the employee has at least 1 year but less than 2 years of continuous service: redundancy pay is 4 weeks;
- if the employee has at least 2 years but less than 3 years of continuous service: redundancy pay is 6 weeks;
- if the employee has at least 3 years but less than 4 years of continuous service: redundancy pay is 7 weeks;
- if the employee has at least 4 years but less than 5 years of continuous service: redundancy pay is 8 weeks;
- if the employee has at least 5 years but less than 6 years of continuous service: redundancy pay is 10 weeks;
- if the employee has at least 6 years but less than 7 years of continuous service: redundancy pay is 11 weeks;
-if the employee has at least 7 years but less than 8 years of continuous service: redundancy pay is 13 weeks;
- if the employee has at least 8 years but less than 9 years of continuous service: redundancy pay is 14 weeks;
- if the employee has at least 9 years but less than 10 years of continuous service: redundancy pay is 16 weeks;
- if the employee has at least 10 years of continuous service: redundancy pay is 12 weeks.

Therefore, the maximum statutory redundancy pay is 16 weeks' pay for someone between 9 and 10 years' service.

Employees with less than 12 months of continuous service are not entitled to redundancy pay (s121(1)a) FWA).

The obligation to pay redundancy does not apply to small business employers (employers with less than 15 employees).
In addition, s123 FWA excludes from redundancy pay the following employees:
- Exclusion from the division 11 FWA (both notice of termination and redundancy pay):
"(a) an employee employed for a specified period of time, for a specified task, or for the duration of a specified season;
(b) an employee whose employment is terminated because of serious misconduct;
(c) a casual employee;
(d) an employee (other than an apprentice) to whom a training arrangement applies and whose employment is for a specified period of time or is, for any reason, limited to the duration of the training arrangement;
(e) an employee prescribed by the regulations as an employee to whom this Division does not apply.
(2) Paragraph (1)(a) does not prevent this Division from applying to an employee if a substantial reason for employing the employee as described in that paragraph was to avoid the application of this Division"

-"Other employees not covered by redundancy pay provisions
(a) an employee who is an apprentice; or
(b) an employee to whom an industry-specific redundancy scheme in a modern award applies; or
(c) an employee to whom a redundancy scheme in an enterprise agreement applies if:
(i) the scheme is an industry-specific redundancy scheme that is incorporated by reference (and as in force from time to time) into the enterprise agreement from a modern award that is in operation; and
(ii) the employee is covered by the industry-specific redundancy scheme in the modern award; or
(d) an employee prescribed by the regulations as an employee to whom that Subdivision does not apply"

duración de servicio ≥ 6 meses: 0 meses

duración de servicio ≥ 9 meses: 0 meses

duración de servicio ≥ 1 año: 1 meses

duración de servicio ≥ 2 años: 1.5 meses

duración de servicio ≥ 4 años: 2 meses

duración de servicio ≥ 5 años: 2.5 meses

duración de servicio ≥ 10 años: 3 meses

duración de servicio ≥ 20 años: 3 meses

Notas / Comentarios

Notas

1) Individual dismissal (non-economic): no statutory severance pay.
2) Economic dismissal (individual and collective): statutory redundancy payment

Compensación por despido injustificado - libre determinación de la Corte: No

Remarks

See s392 FWA on Remedy - compensation

Compensación por despido injustificado - límites legales (techo calculado en meses o método de calculo): Max. 26 weeks' salary or half the amount of the high income threshold [HIT]
(The HIT, which is indexed annually is currently $113,800 (July 2010 - previously 108,300) therefore the compensation cap is $61,650 (previously $54150.)

Remarks

s392 (5) and (6) FWA on Compensation cap
Compensation cap
"(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period - the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations."

Posibilidad de readmisión: Si

Remarks

s390 and s391 FWA.
s391 reads as follows:
"Reinstatement
(1) An order for a person's reinstatement must be an order that the person's employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person's employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal [...]"

Conciliación previa obligatoria: No

Remarks

The FWA does not provide for mandatory conciliation. However, after an unfair dismissal application has been lodged, Fair Work Australia usually convenes a conciliation conference of the parties which is held by telephone with a conciliator from Fair Work Australia.

Corte o Tribunal competente: tribunal del trabajo

Remarks

Unfair dismissal disputes are decided by Fair Work Australia (which is the national workplace relations tribunal) (sec. 385, 390 FWA)

Note that general protections dismissal applications (see prohibited grounds) can be brought to FWA which may deal with the dismissal by mediation or conciliation, or by making a recommendation or expressing an opinion. However, if the dismissal remains unresolved, the applicant can then make an application to an ordinary court to deal with the matter.
A person cannot make a general protections dismissal application at the same time as an unfair dismissal application

Arbitraje: Si