Are you a “small business employer” under the Fair Work Act?

The Fair Work Act 2009 (Cth) (FWA) gives a definition of “small business employer” in section 23. Generally, this says that a “national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.”

 Sounds simple? Just 14 employees or less? Well, perhaps not as simple as it initially sounds…

 There are some areas to be careful of, such as:

 1)     What is a “national system employer”?

2)     What counts as an employee – full-time only? Casual as well?

3)     If you have a subsidiary company, are those employees included as well or not?

4)     Do you count an employee who is in the process of being dismissed?

 The answers to some of these questions are, in fact, far from simple. For example, in trying to assess what a “national system employer” is, the FWA provides a further definition that includes such an employer being a “constitutional corporation”! This then – of course – leads to a further definition which actually requires reference to – wait for it – the Australian Constitution.

 Thankfully, others are not so complicated – for example, any associated entities are all taken to be one entity. However, what this example does demonstrate is that, before you proceed down the quick and easy path of just dismissing someone from employment, a prudent approach will ensure that you check how the law applies to your business. Then you can take appropriate steps, whatever they may be, to ensure that you and your business are acting in a fair and lawful manner.

 Please feel free to call James Burke or Adam Stencel on (08) 8941 6355 or email james@bowden-mccormack.com.au or adam@bowden-mccormack.com.au should you wish to discuss any dispute resolution or employment issues.