▷ Although there is no general exclusion based on the size of the enterprise in the FWA, there are, however, some exemptions or specific requirements pertaining to dismissal in businesses with less than 15 employees (referred to in the Act as "small business employer": section 23 FWA).
‣ Small business employers are excluded from the obligation to pay redundancy pay (§ 121(1)b) FWA)
‣ In addition, small business employees cannot make a claim for unfair dismissal in the first 12 months following their engagement, whereas protection against unfair dismissal applies after 6 months of employment in businesses with 15 or more employees.
→ Under section 383 FWA on the minimum employment period, which is :
(a) If the employer is not a small business employer, 6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) If the employer is a small business employer, one year ending at that time.
‣ After the 12-month period of employment, small business employers must observe the requirements set out in the Small Business Fair Dismissal Code in order to dismiss an employee. If the employer follows the Code, then the dismissal will be deemed to be fair.
▻ It is worth noting that under the former legislation, there was a broader exemption related to the size of the employer's workforce. According to section 643 (Workplace Relations Act), claims of unfair dismissal were not available to employees working for an employer with 100 or fewer employees.

▷ The scope of application of the FWA differs in the various parts of the Act. 'Employee' and 'employer' are either given their ordinary meaning or most frequently refer to 'national system employees' or 'national system employer'.
The main provisions on dismissal apply only to national system employees (i.e., Part 3-2 on Unfair Dismissal, redundancy pay and notice of termination provisions).
▻ The definition of national system employees and employers is provided in sections 14 and 15 of the FWA.
Employees covered by the national workplace relations system include those:
- employed by a constitutional corporation (these are corporations that are trading or financial, usually Pty Ltd or Ltd companies)
- employed by the Commonwealth or a Commonwealth authority
- employed in Victoria, the Northern Territory or the Australian Capital Territory
- a flight crew officer, a maritime employee, a waterside employee, employed in connection with interstate or overseas trade or commerce.
▷ The Act has also foreseen a referral mechanism (sections 30A to 30R) enabling states to join the national system rather than keeping their own specific system.
▻ Since 1 January 2010, sole traders, partnerships, other unincorporated entities and non-trading corporations in New South Wales, Queensland, South Australia and Tasmania have joined the national system.
▻ All private sector employers in New South Wales, Queensland, South Australia, and Tasmania are therefore covered by the national system since 1 January 2010.
▻ The Western Australian government has chosen not to join the national system.
▻ Consequently, the following employees are not covered by those provisions of the FWA which only apply to national system employees:
- Employees in the state public sector and local government employees in New South Wales, Queensland, South Australia, Tasmania and Western Australia are not covered by the national system and remain under their respective state system.
- Western Australian corporations whose main activity is not trading or financial.
- Western Australian sole traders, partnerships, or other unincorporated entities.
▷ With regards to protection against unfair dismissal, according to section 382, 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'. In addition to having completed the minimum employment period, section 382 provides that one of the following conditions shall be fulfilled:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold"[which from 1 July 2009 is $108,300, indexed annually – from 1 July 2018, the indexed threshold amount is $145,400].
▻ In addition, there are specific exclusions attached to a number of dismissal requirements. Such exclusions, generally based on the nature of the employment relationship, have been indicated under the relevant item (i.e., redundancy pay, notice of termination...).
▷ On "who is covered by the national system", see the website "The Fair Work System":
https://www.fairwork.gov.au/about-us/legislation/the-fair-work-system

No statutory provisions were found in the examined legislation in this respect.

No statutory provisions were found in the examined legislation in this respect.

No statutory limitation. Subject to the courts' findings.

No statutory limitation. Subject to courts' findings.

▷ Since 2020, the Australian Bureau of Statistics (abs.gov.au) has published statistics on working arrangements and forms of employment, such as casual work, fixed-term employment, independent contractors, shift work, job flexibility, and job security.
Key statistics 2022
‣ 2.7 million casual employees (23% of employees, 20% of all employed), up from 2.4 million in August 2021.
‣ 21% of employees didn't have minimum guaranteed hours, up from 20% in August 2016.
‣ 1.1 million independent contractors (8.3% of employed).
‣ 3.4% of employees were employed on a fixed-term contract.

There is no statutory probationary period in the FWA.
However, according to section 382, 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 section 383 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).

▷ Regarding the above list of prohibited grounds:
- "Family responsibilities" should be understood as covering "Family or carer's responsibilities";
- "Temporary work injury or illness" should be understood as covering "Temporary absence from work due to work injury or illness";
- "Social origin" should be understood as covering "National extraction or social origin"; and
- "Disabilities" should be understood as covering "Physical or mental disabilities".
▷ 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:
→ Section 340 FWA that prohibits adverse action (which includes dismissal) against another person in relation to the exercise of workplace rights (as defined in § 341 FWA);
→ Section 346 FWA that prohibits adverse action (which includes dismissal) against another person in relation to industrial activities;
→ Section 351 FWA on discrimination;
→ Section 352 FWA on the prohibition of dismissal on the grounds of temporary absence from work because of illness or injury.
Employees who believe they have been dismissed in contravention of the "general protections provisions" of the Act can apply to the Fair Work Commission to deal with the dismissal.
▷ The Act also contains a special provision on unlawful termination:
→ Section 772 FWA makes it unlawful for an employer to terminate an employee's employment for certain reasons:
(1) An employer must not terminate an employee’s employment for one or more of the following reasons, or for reasons including one or more of the following reasons:
(a) temporary absence from work because of illness or injury of a kind prescribed by the regulations;
(b) trade union membership or participation in trade union activities outside working hours or, with the employer’s consent, during working hours;
(c) non‑membership of a trade union;
(d) seeking office as, or acting or having acted in the capacity of, a representative of employees;
(e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
(f) race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin;
(g) absence from work during parental leave;
(h) temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.
‣ Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) However, subsection (1) does not prevent a matter referred to in paragraph (1)(f) from being a reason for terminating a person’s employment if:
(a) the reason is based on the inherent requirements of the particular position concerned; or
(b) if the person is a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—the employment is terminated:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3) To avoid doubt, if:
(a) an employer terminates an employee’s employment; and
(b) the reason, or a reason, for the termination is that the position held by the employee no longer exists, or will no longer exist; and
(c) the reason, or a reason, that the position held by the employee no longer exists, or will no longer exist, is the employee’s absence, or proposed or probable absence, during parental leave;
the employee’s employment is taken, for the purposes of paragraph (1)(g), to have been terminated for the reason, or for reasons including the reason, of absence from work during parental leave.
(4) For the purposes of subsection (1), subsection 109(2) (which deals with the meaning of voluntary emergency management activity) has effect as if the word employee had its ordinary meaning.
▷ Note, however, that employees are barred by section 723 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.

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

→ Section 117(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".

▷ 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.
→ Section 117(3) establishes the statutory minimum notice periods, which vary 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 years 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 to section 123 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):
"(1) (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:
"(3) (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."

→ Section 530 FWA indicates that:
(1) If an employer decides to dismiss 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons, the employer must give a written notice about the proposed dismissals to the Chief Executive Officer of the Commonwealth Services Delivery Agency (Centrelink).
(2) The notice must be in the form (if any) prescribed by the regulations and set out:
(a) the reasons for the dismissals; and
(b) the number and categories of employees likely to be affected; and
(c) the time when, or the period over which, the employer intends to carry out the dismissals.
(3) The notice must be given:
(a) as soon as practicable after making the decision; and
(b) before dismissing an employee in accordance with the decision.
(4) The employer must not dismiss an employee in accordance with the decision unless the employer has complied with this section.
▷ Note that under section 534, the specific rules on notification and consultation in case of collective dismissal do not apply in relation to any of the following employees:
"(1) (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."

→ Section 531(3) FWA provides for "Consulting relevant registered employee associations": An employer complies with this subsection if:
(a) The employer gives 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; and
(b) The opportunity is given:
(i) as soon as practicable after making the decision; and
(ii) before dismissing an employee in accordance with the decision.

→ Section 530 FWA requires mandatory notification of the proposed dismissals to the Chief Executive Officer of the Commonwealth Services Delivery Agency (Centrelink):
(1) If an employer decides to dismiss 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons, the employer must give a written notice about the proposed dismissals to the Chief Executive Officer of the Commonwealth Services Delivery Agency (Centrelink).
(2) The notice must be in the form (if any) prescribed by the regulations and set out:
(a) the reasons for the dismissals; and
(b) the number and categories of employees likely to be affected; and
(c) the time when, or the period over which, the employer intends to carry out the dismissals.
(3) The notice must be given:
(a) as soon as practicable after making the decision; and
(b) before dismissing an employee in accordance with the decision.
(4) The employer must not dismiss an employee in accordance with the decision unless the employer has complied with this section.
▷ Note: This subsection is a civil remedy provision (see Part 4‑1).

→ Section 531 (2) FWA requires notification of 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, indicating that: (2) An employer complies with this subsection if:
(a) The employer notifies 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, of the following:
(i) the proposed dismissals and the reasons for them;
(ii) the number and categories of employees likely to be affected;
(iii) the time when, or the period over which, the employer intends to carry out the dismissals; and
(b) The notice is given:
(i) as soon as practicable after making the decision; and
(ii) before dismissing an employee in accordance with the decision.

No statutory provisions were found in the examined legislation in this respect.

No statutory provisions were found in the examined legislation in this respect.

No statutory provisions were found in the examined legislation in this respect.

No statutory provisions were found in the examined legislation in this respect.

→ Section 531(3) FWA indicates that:
(a) 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.
(b) The opportunity is given:
(i) as soon as practicable after making the decision; and
(ii) before dismissing an employee in accordance with the decision.

→ Section 119 (1) 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 with between 9 and 10 years' service with one employer.
‣ Employees with less than 12 months of continuous service are not entitled to redundancy pay (§ 121(1)a) FWA).
‣ The obligation to pay redundancy does not apply to small business employers (employers with less than 15 employees).
→ In addition, section 123 FWA excludes from redundancy pay the following employees:
- Exclusion from the division 11 FWA (both notice of termination and redundancy pay):
"(1)(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
(3)(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"

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