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Employment Law – Background

The Australian Government announced the abolition of the Temporary Work (Skilled) visa (subclass 457 visa) in April 2017. They will be replaced with the Temporary Skill Shortage (TSS) visa in March 2018. Consequently, employment law questions have arisen regarding the entitlements afforded to such workers in this transition period.

Common questions include:

  • Could the employee successfully claim unfair dismissal?
  • Is an employee on a 457 visa entitled to redundancy pay if there is no further work when the visa expires?

Employment Law – The Fair Work Act 2009 (Cth)

s386(2) provides that an employee is excluded from claiming unfair dismissal if:

  • the employee is employed on a contract;
  • for an unambiguous specified period of time; and
  • whose employment is terminated at the end of that specified period

Employment Law – Case Decision

A decision of the Full Bench of the (then) Australian Industrial Relations Commission held that a s457 visa can be used to specify the fixed time period of an employment contract. This is provided that the parties have a sufficiently proven understanding of the terms of the visa and the contract of employment. This understanding must therefore include the period of employment and most notably, the end date.

The decision is available for you to read through the hyperlink:

MI v Ocean Spirit Dive Pty Ltd – PR900784 [2001] AIRC 82; (2 February 2001).

Employment Law – Redundancy Pay

Sections 121 to 123 of the Fair Work Act 2009 (Cth), and the National Employment Standards provide that the redundancy pay scale does not apply if the employee was contracted for a specified period of time:

  • immediately prior to the termination of employment due to redundancy; or
  • when the employee was given notice of termination

Employment Law – Termination

Employers should be aware that although a valid reason may be found for dismissal, the Fair Work Commission can determine a dismissal to be ‘harsh’. This is because dismissal can cause serious financial consequences, social dislocation and increase the likelihood of a forced departure from Australia.

An employee terminated may be entitled to redundancy pay if:

  • the job no longer exists;
  • the employee has completed at least 12 months’ continuous service with the employer; and
  • the employer employs 15 employees or more

Employment Law – Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • seek the assistance of an employment lawyer to understand the impacts of the abolition of the s 457 visa
  • prepare new employment contracts as required
  • review employment contracts to ensure a specified period of time is clear and unambiguous
  • draft new/changes to employment contracts with the assistance of an employment lawyer
  • raise any immigration law questions with an immigration lawyer

Employment Law – More Information

Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635-7966 to speak with one of our employment lawyers.