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The WorkChoices legislation has been in effect for over a year now, and it's led to come serious changes in the work environment.

The introduction of WorkChoices legislation has significantly changed the workplace landscape. While there has been a reduction in unfair dismissal claims, there has been an increase in claimed of unlawful termination and in claims against employers for breaches of awards. This has led to a higher number of prosecutions by the Workplace Ombudsman (previously known as the Office of Workplace Services).

While many employers no longer face unfair dismissal claims, they still need to aware of claims for unlawful termination. Faced with an unlawful termination claim, an employer is required to prove they did not terminate the employee for a prohibited reason. This can be difficult where the employer has not documented the reasons for dismissing the employee. To overcome this, it is recommended employers provide a departing employee with a letter stating the reasons for their dismissal.

Given the changing IR landscape, employers need to be aware of what terms and conditions apply to their employees. Importantly, employers need to aware that it is highly likely that industry and common rule awards will apply to their business. Employers who ignore this may face prosecution from the Workplace Ombudsman. Recent cases have highlighted that employers can face fines of up to $33,000 for each breach.

On May 4 this year, the government announced that it would be introducing changes to WorkChoices aimed at boosting the safety net for agreement making and introducing a new Fairness Test for employees earning less than $75,000.

 The changes stipulate that current "protected" award conditions can no longer be removed under WorkChoices without compensation. Effective from May 7, the removal of protected award conditions by employers is subject to the provision of adequate compensation, to be determined in accordance with a new Fairness Test conducted by the newly named Workplace Authority (formerly the Office of the Employment Advocate).

These changes show that as well as the workplace, over the past year, WorkChoices itself has begun to evolve.

*Karl Rozenbergs, partner at Hall and Wilcox Lawyers (03 9603 3583)

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