Employer obligations upon deciding to dismiss 15 or more employees
The information in this sheet only concerns national system employers and Victorian employers.
The information concerns the provision in the Fair Work Act 2009 (Cth) (FW Act) in relation to obligations arising when a decision is made to dismiss 15 or more employees for reasons of an economic, technological, structural or similar nature. The obligations commenced operation on 1 July 2009. They reflect similar obligations provided in the Workplace Relations Act.
Obligation to notify Centrelink
When 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 as soon as practicable after so deciding and before terminating an employee’s employment provide to Centrelink a completed form setting out certain information.
FWA may order employers to consult with unions
If an employer has decided to dismiss 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons, and the employer has not met certain requirements, FWA may order the employer to notify and consult with relevant unions.
These kinds of orders will be available if:
- the employer could reasonably be expected to have known at the time of deciding to dismiss the employees that one or more of the employees were union members; and
- the employer has not given the union certain information about the proposed dismissals (i.e. the reasons for them, the number and categories of employees likely to be affected, when the dismissals will take place) as soon as practicable after making the decision and before dismissing the employees in question; and
- the employer has not give the union an opportunity to consult the employer on measures to avert or minimise the proposed dismissals or to mitigate the adverse effects of them (i.e. through redeployment).
FWA may make whatever orders it considers appropriate, in the public interest, to put the employees and their union in the same position (as nearly as can be done) as if the employer had complied with the above requirements. However, such orders must not involve reinstatement of employees, withdrawal of notices of dismissal, payment of an amount in lieu of reinstatement, payment of severance pay or disclosure of confidential information or commercially sensitive information relating to the employer (absent an enforceable undertaking not to disclose the information to any other person) or disclosure of personal information relating to a particular employee (absent the employee’s written consent).
Who may apply for orders?
FWA may make the order only on application by the employees concerned or their union. However, the orders are not available for employees employed for a specified period of time, for a specified task, or for the duration of a specified season, employees dismissed because of serious misconduct, casuals, apprentices, trainees, daily hire employees in the building and construction or meat industries.
Enterprise agreements must contain a consultation term
Enterprise agreements must contain a consultation term requiring an employer to consult employees about major workplace changes that are likely to have a significant effect on the employees. Regulations prescribe a model consultation term.