Who is protected from unfair dismissal?

An employee of a national system employer (called a national system employee) who has been dismissed is protected from unfair dismissal and eligible to make an application for unfair dismissal remedy if:

• they have completed the minimum period of employment AND
• they earn less than the high income threshold (which is currently $175,000^[1] per year), or
• a modern award covers their employment, or
• an enterprise agreement applies to their employment.

See Fair Work Act 2009 s.14

Whether an employer is a national system employer depends on the location of the employment relationship (state or territory) and, in some cases, the legal status and business of the employer.

In broad terms a national system employer includes:

• all employers in Victoria (with limited exceptions in relation to some State public sector employees), the Northern Territory and the Australian Capital Territory
• all employees on Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands
• private enterprise employers in New South Wales, Queensland and South Australia
• private enterprise employers and local government employers and employees in Tasmania
• employers that are constitutional corporations in Western Australia (including Pty Ltd companies) – this may include some local governments and authorities
• the Commonwealth and Commonwealth authorities
• the employers of waterside employees, maritime employees and flight crew officers in interstate or overseas trade or commerce.

Related information

• What is a constitutional corporation?

See Fair Work Act ss.14, 30D and 30N

In broad terms, the following are not national system employers:

• State government employers in New South Wales, Queensland, Western Australia, South Australia and Tasmania
• local government employers in New South Wales, Queensland and South Australia
• employers that are non-constitutional corporations in Western Australia (including an individual, a sole trader, partnership or trust)
• employers of employees at higher managerial levels in the public sector in Victoria.

Related information

• People excluded from national unfair dismissal laws
• What is a constitutional corporation?
• Partnerships – Western Australia

Employee working one hour a week covered

Matthews v San Remo Fisherman’s Co Operative [2019] FWC 4877 (Gregory C, 12 July 2019).

In this unfair dismissal application, the applicant had been employed as a pelican feeder since 2001. He worked one day each week for one hour, and received an hourly rate of $29.00, meaning that his weekly income was also $29.00. He was dismissed from his employment following an argument in which he swore at the Co-Op's General Manager.

The Commission emphasised that any employee is entitled to pursue an unfair dismissal application after they have been dismissed, regardless of the nature of their employment arrangements, provided they satisfy the relevant jurisdictional requirements.