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The Australian government has implemented a number of schemes to promote and encourage gender pay equity in an effort to ensure that men and women receive equal pay for work of equal or comparable value.

As part of the Global Workplace Insider global theme for this month, we provide an overview of the key pieces of legislation that operate to address gender pay equity in Australia.

Section 119(1)(a) of the Fair Work Act 2009 (Cth) states that an employee is entitled to be paid redundancy pay by the employer  if the employment is terminated 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 (the Exception).

The Exception was most recently considered by a Full Bench of the Fair Work Commission in December 2015 in Compass Group (Australia) Pty Ltd v National Union of Workers and another [2015] FWCFB8040 (Compass) in the context of employees whose employment was terminated as a result of the employer no longer holding a particular client contract, which those employees were specifically employed to service.  The employer, Compass,  provided  fire rescue services to the Department of Defence and in the circumstances of this case, had made a commercial decision not to tender for a replacement contract in respect of those services.  Compass relied on the Exception and withheld redundancy pay from the terminated employees.

The Full Bench said that in order to determine whether the Exception applies in a given case it is necessary to:

  1. Consider the normal features of the business; and
  1. Then determine whether the relevant terminations are properly described as falling within the ordinary and customary turnover of labour in that particular business.

Ensuring safety compliance in the workplace can sometimes result in disciplinary action against employees who fail to comply with safety requirements. Unfair dismissal cases provide guidance to employers when it comes to the factors to take into account when terminating employment as a result of health and safety breaches.

Cases show that bodies like the Fair Work Commission (FWC) place importance on the seriousness of the safety breach, whether the breach was wilful or careless and whether procedural fairness was afforded to the employee.

Importantly, the cases also show that a safety breach doesn’t necessarily have to be deliberate to justify dismissal, but the employee’s explanation will be a relevant factor to take into account when proceeding with any disciplinary action.

Last year we reported on a decision of the Supreme Court of New South Wales which upheld the summary dismissal of an employee for serious misconduct, even though the employer had not established, as a matter of fact, that the misconduct had occurred.

The case marked a departure from a number of earlier authorities which had referred to the need for misconduct to be clearly established, in light of the grave social and economic consequences of summary dismissal for employees.

The New South Wales Court of Appeal has now overturned the decision.