CDD reglementés: Non

Motifs autorisés de recours au CDD: aucune limitation

Nombre maximum de CDD successifs: aucune limitation

Remarks

No statutory limitation. Subject to courts' findings.

Durée cumulée maximum de CDD successifs: aucune limitation

Remarks

No statutory limitation. Subject to courts' findings.

% de travailleurs sous CDD: 5.6

Remarks

OECD statistics, last estimates for 2013, based on the following definitions:

“Temporary worker: Temporary workers are those employees (excluding owner-managers of incorporated enterprises) where the employment in main job has a set completion date or event (fixed-term contract), or casuals (those without leave entitlements) where employment is expected to continue for less than 12 months with “seasonal/temporary job/fixed contract” reported as the reason."
(Available at: http://www.oecd.org/employment/emp/employmentdatabase-employment.htm )

Durée maximale de la période d'essai (en mois): 12 mois

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).

Obligation d'informer le travailleur des raisons du licenciement: Oui

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 the Fair Work Commission (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, the FWC 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 FWC 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."

Motifs autorisés (licenciement justifié): tout motif légitime

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 Commission) 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)"

Motifs prohibés: état matrimonial, grossesse, congé de matérnité, responsabilités familiales, avoir déposé une plainte contre l'employeur, maladie ou accident professionel temporaire, race, couleur, sexe, orientation sexuelle, religion, opinion politique, origine sociale, âge, affiliation et activités syndicales, handicap, congé parental, congé d'adoption

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 Commission 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.

Travailleurs bénéficiant d'une protection particulière:

Remarks

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

Forme de la notification du licenciement au travailleur: écrite

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".

Délai de préavis:

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."

ancienneté ≥ 6 mois:

  • Tous: 0.25 mois.

ancienneté ≥ 9 mois:

  • Tous: 0.25 mois.

ancienneté ≥ 2 ans:

  • travailleurs ≤ 45 ans: 0.5 mois.
  • travailleurs > 45 ans: 0.75 mois.

ancienneté ≥ 4 ans:

  • travailleurs ≤ 45 ans: 0.75 mois.
  • travailleurs > 45 ans: 1 mois.

ancienneté ≥ 5 ans:

  • travailleurs ≤ 45 ans: 1 mois.
  • travailleurs > 45 ans: 1.25 mois.

ancienneté ≥ 10 ans:

  • travailleurs ≤ 45 ans: 1 mois.
  • travailleurs > 45 ans: 1.25 mois.

ancienneté ≥ 20 ans:

  • travailleurs ≤ 45 ans: 1 mois.
  • travailleurs > 45 ans: 1.25 mois.

Indemnité compensatrice de préavis: Oui

Remarks

s117(2) b) FWA.

Notification à l'administration publique: Non

Notification aux représentants des travailleurs: Non

Autorisation de l'administration publique ou d'un organe judiciaire: Non

Accord des représentants des travailleurs: Non

Définition du licenciement collectif (nombre d'employés concernés): 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."

Consultation préalable des syndicats (représentants des travailleurs): Oui

Remarks

s531(3) FWA

Notification à l'administration publique: Oui

Remarks

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

Notification aux représentants des travailleurs: Oui

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.

Autorisation de l'administration publique ou d'un organe judiciaire: Non

Accord des représentants des travailleurs: Non

Règles de priorité pour l'ordre des des licenciements collectifs (situation sociale, âge, ancienneté): Non

Obligation de l'employeur d'examiner des solutions alternatives au licenciement (transferts, formation...): Oui

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.

Règles de priorité de réembauche: Non

ancienneté ≥ 6 mois: 0 mois

ancienneté ≥ 9 mois: 0 mois

ancienneté ≥ 1 an: 0 mois

ancienneté ≥ 4 ans: 0 mois

ancienneté ≥ 5 ans: 0 mois

ancienneté ≥ 10 ans: 0 mois

ancienneté ≥ 20 ans: 0 mois

Indemnité de licenciement pour motif économique:

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"

ancienneté ≥ 6 mois: 0 mois

ancienneté ≥ 9 mois: 0 mois

ancienneté ≥ 1 an: 1 mois

ancienneté ≥ 2 ans: 1.5 mois

ancienneté ≥ 4 ans: 2 mois

ancienneté ≥ 5 ans: 2.5 mois

ancienneté ≥ 10 ans: 3 mois

ancienneté ≥ 20 ans: 3 mois

Notes / Remarques

Notes

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

Compensation pour licenciement injustifié - montant librement déterminé par la cour: Non

Remarks

See s392 FWA on Remedy - compensation

Compensation pour licenciement injustifié - limites légales (plafond en mois ou methode de calcul définie): Max. 26 weeks' salary or half the amount of the high income threshold [HIT]
(The HIT, which is indexed annually is currently $129,300 (December, 2013) therefore the compensation cap is $64,650.)

Remarks

s392 (5) and (6) FWA on Compensation cap
Compensation cap
"(5) The amount ordered by FWC 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."

Possibilité de réintégration dans l'emploi: Oui

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 [...]"

Conciliation préalable obligatoire: Oui

Remarks

After an unfair dismissal application has been lodged, the Fair Work Commission must resort to all means other than arbitration which it considers are likely to resolve the conflict, such mediation, conciliation, making a recommendation or expressing an opinion (sec. 368 FWA). It usually convenes a conciliation conference of the parties which is held by telephone with a conciliator from the Fair Work Commission.

Courts ou tribunaux compétents: tribunal du travail

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 the FWC which must deal with the dismissal by mediation or conciliation. If it is satisfied that all reasonable attempts to resolve the dispute by mediation or conciliation have been or are likely to be unsuccessful ,it must issue a decision to refer the dispute to arbitration. If both parties agree, the FWC can then resolve the conflict by arbitration (sec. 369 FWA). Otherwise, the applicant can then make an application to an ordinary court to deal with the matter (Sec 370 FWA).
A person cannot make a general protections dismissal application at the same time as an unfair dismissal application

Règlement des litiges individuels par arbitrage: Oui

Remarks

If the FWC is satisfied that all reasonable attempts to resolve a protection dismissal application by mediation or conciliation have been or are likely to be unsuccessful and has issued a formal decision regarding this matter, it can, with the approval of both parties, resolve the conflict by arbitration, including by issuing binding orders to reinstate or compensate the applicant, to maintain his or her employment and to pay lost remuneration (sec. 369 FWA).