Respected Seniors,
What are the laws related to employee separation/termination in Australia? What happens to the leave balance of an employee if they are transferred/deputed to another country from India on a long-term work permit/visa? Could anyone provide me with some links to research on this?
Thank you.
From India, Madras
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9What are the laws related to employee separation/termination in Australia? What happens to the leave balance of an employee if they are transferred/deputed to another country from India on a long-term work permit/visa? Could anyone provide me with some links to research on this?
Thank you.
From India, Madras
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To ascertain which law is binding, please let the forum know a few more details. For example, is the company Indian? What does the termination/separation clause state in your appointment letter? Providing these details will enable us to give you appropriate responses.
From India, Ahmadabad
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From India, Ahmadabad
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Saji,
Yes, our company is an Indian company. I was more interested in knowing what the laws are applicable if I were planning to move on to another company. What should be the notice period I should provide to my employer as per Australian law, regardless of what I have signed in my contract with my employer.
Moreover, could you also help me understand what leaves are entitled to an employee for a one-month period in Australia and how I should claim my leave balance payment.
From India, Madras
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Yes, our company is an Indian company. I was more interested in knowing what the laws are applicable if I were planning to move on to another company. What should be the notice period I should provide to my employer as per Australian law, regardless of what I have signed in my contract with my employer.
Moreover, could you also help me understand what leaves are entitled to an employee for a one-month period in Australia and how I should claim my leave balance payment.
From India, Madras
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Dear Anonymous, Thankyou for not just sharing a view , but contributing with a contact that can resolve the situation. Appreciate such responsible gestures!
From India, Mumbai
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From India, Mumbai
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I support Saji,s views in this regard. You may be working, at any location, in the world. Logically, since you are employee of Indian Company, you are governed by the rules as stated in your Appointment letter, especially about Resignation, Notice period, Leave matters, etc. Other situational things, like office timings, holidays, medical assistance, travel assistance, other work related rules/laws, can be under Australian rules.
I have a strong doubts about statements made by Anonymous, especially in the matters of Resignation. If the foreign company, which is presumed to be collaborator of Indian company, has issued its own Service rules, to an Indian departed employee, then the statements of Anonymous become true. A person joined an Organisation in India, anywhere he goes in the world, for work, on deputation, he will send his resignation to his Original employer.
There are many foreigners come to India, for working in the offices of their Indian collaborators, I don’t think, if he wishes to resign, he is governed by Indian office rules. He will send his resignation to his US Office.
Anyway, these are my personal thoughts. I fully accept and appreciate, The best and only answer, given by Anonymous, “Talk directly to the HR in Australia”, for which he himself has provided references. Great job !!
From India, Mumbai
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I have a strong doubts about statements made by Anonymous, especially in the matters of Resignation. If the foreign company, which is presumed to be collaborator of Indian company, has issued its own Service rules, to an Indian departed employee, then the statements of Anonymous become true. A person joined an Organisation in India, anywhere he goes in the world, for work, on deputation, he will send his resignation to his Original employer.
There are many foreigners come to India, for working in the offices of their Indian collaborators, I don’t think, if he wishes to resign, he is governed by Indian office rules. He will send his resignation to his US Office.
Anyway, these are my personal thoughts. I fully accept and appreciate, The best and only answer, given by Anonymous, “Talk directly to the HR in Australia”, for which he himself has provided references. Great job !!
From India, Mumbai
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You may sign a contract with an Indian company based in India, but, the moment you obtain a work permit in another country, the law of that country supersedes any contract terms that you may have signed. If you go through case histories of the cases that have been filed against TCS and Infosys and other such companies seeking compensation for exploitation by H1B employees, you will realise how it works. As an organisation, we have faced a couple of cases and have had to resort to out of court settlements since certain terms that are applicable in one country, is not relevant in other countries and we were counselled by the lawyers that the terms of transfer have to be aligned with the local laws where an employee is being placed. It cannot violate the local laws. Just a case in example, in a layman's language, " Procuring any type of guns in the US is legal and does not require a gun licence. Will that hold good in India? No. In India the guns are licenced and the types of guns allowed for public are very restricted". One needs to align with the Indian laws, even if you are a tourist. Why? Because the Indian law is supreme in India. The same applies for any country.
From United+States, San+Francisco
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From United+States, San+Francisco
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Sir, Your views are very informative, and also 100 percent acceptable to anyone.
The question which remained unanswered is ‘whether law in Australia is applicable to RESIGNATION’ also. To whom, the person, desirous of resigning, will submit the ‘Notice period’. To my understanding, it will be his Original Indian Employer. Then, ofcourse, the Indian HR will have a dialogue with Foreign HR, and in consultation with him, process the Resignation papers.
This is really an interesting case to study. If Indian company has issued an appointment letter stating that ONE months notice period is required, and as per Foreign company, where the person is currently working, the notice period is THREE months. As per Australian law, the person should serve three months notice. OK, fine.
Let us talk, other way. If Indian company has issued letter requiring THREE months notice, and Australian company, where he is deputed, has a rule of ONE month, or ONE WEEK… then what is the answer !!
From India, Mumbai
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The question which remained unanswered is ‘whether law in Australia is applicable to RESIGNATION’ also. To whom, the person, desirous of resigning, will submit the ‘Notice period’. To my understanding, it will be his Original Indian Employer. Then, ofcourse, the Indian HR will have a dialogue with Foreign HR, and in consultation with him, process the Resignation papers.
This is really an interesting case to study. If Indian company has issued an appointment letter stating that ONE months notice period is required, and as per Foreign company, where the person is currently working, the notice period is THREE months. As per Australian law, the person should serve three months notice. OK, fine.
Let us talk, other way. If Indian company has issued letter requiring THREE months notice, and Australian company, where he is deputed, has a rule of ONE month, or ONE WEEK… then what is the answer !!
From India, Mumbai
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Abhay,
I have been working as a Global HR head for the past 11 years and have worked in 3 continents and am currently overseeing HR in 44 sites in 38 countries across 5 continents.
The issue is not by the Australian company having a different notice period from the notice period of Indian company. It's about the terms of appointment aligning with Australian Law. Many times when we transfer a person to another country, we just shoot out a transfer letter stating you are transferred on the same terms and conditions and only mention the package. When the person wants to resign, we harass him to comply with Indian terms, not realizing that Indian terms are not valid in the other country. I will give you a few examples.
We have an Oil well in Venezuela. As per the terms of our appointment, the notice period is 3 months. While the Venezuelan government has a rule that if a person does not work in a strategic position and he is in a graduate/officer/manager position, then his notice period will not be more than a month. And if a person is working in a non-graduate position and is not in an executive position, then his notice period cannot be beyond 2 weeks. The settlement needs to be paid within 24 hours of relieving; if not, there is a jail term for the HR head and the CEO. (Remember, Venezuela is a Socialist country, and hence all laws are employee-friendly.) My company is headquartered in one of the ASEAN countries. We have a few Indian expats working. An Indian expat was the reporting boss of the person transferred to Venezuela. This boss started harassing him, stating that he will not relieve him and had given instructions to HR to stop all his salary till further notice with a cc to that employee. Before the Venezuelan HR team could act on the mail, the concerned employee walked into the labor office and handed over the mails to the labor officer. The labor officer and the police landed up at the doors of our office. We had a huge problem. They wanted to arrest the HR head and also the CEO. Luckily the CEO was in Mexico on tour. The HR head was detained and taken to the Police station. We then intervened and pleaded with the aggrieved employee to settle the issue by taking double the money of his settlement and withdraw the complaint. Needless to say, the labor department and the cops made their money too.
The second example of mine indicates the laws on working hours. The working hours in India are 48 hours a week, but most countries are between 40 and 45 hours. But France is different. We have an operation in France. In India, other than workers, no one is paid overtime, especially Officers. France had 39 hours a week. But in the year 2000, when they found that unemployment was at the rate of 12%, they reduced the working hours by 12% and made it 35 hours a week so that everyone will get work. Any extra work will attract overtime. I still do not understand how this works. But then Socialism never had any logic, and France is a Socialist country.
We had transferred an Indian national to France. He was transferred from India. The Indian HR head did not bother to check the working hours in France and just issued the transfer orders stating the terms and conditions are the same, except for the salary. This is the normal format used. The office hours per week were 35. But this Indian expat had an Indian boss. And because the boss used to work late, he got the subordinate also to work late. 11 months down the line, the subordinate resigned to join Total oil company. When his settlement check was given, he took it happily. But one week later, one of the resigned employees' friends told him that he also needs to get payment for the overtime to him since he put in more hours than the 35 hours a week. He wrote to the Indian boss. The Indian boss did not bother to check with HR and instead refused to pay since the resigned employee was a manager, and he was transferred on the same terms of the previous assignment. The resigned employees had, incidentally, signed the overtime sheets and handed over to the boss when he was getting the clearances, and he was advised by the Indian boss that since he is a manager, he is not entitled to overtime and to remove the overtime sheets.
The employee then wrote to us. We passed on the mail to the France HR team. The HR team stated that he has to be paid overtime. The Indian boss said no. We insisted on getting a legal opinion, and when a legal opinion was taken, the lawyer advised us that the local laws supersede the terms of appointment. If we do not comply with local laws of working hours, then the fine that we would have had to pay would have been at the rate of 120,000 euros per week of violation. (This is calculated in terms of the size of the company). Hence, it had to be paid. And mind you, the employee got overtime pay equivalent to over 7 months' salary.
I hope I have been able to clarify to you how International HR operates.
Regards
From United+States, San+Francisco
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I have been working as a Global HR head for the past 11 years and have worked in 3 continents and am currently overseeing HR in 44 sites in 38 countries across 5 continents.
The issue is not by the Australian company having a different notice period from the notice period of Indian company. It's about the terms of appointment aligning with Australian Law. Many times when we transfer a person to another country, we just shoot out a transfer letter stating you are transferred on the same terms and conditions and only mention the package. When the person wants to resign, we harass him to comply with Indian terms, not realizing that Indian terms are not valid in the other country. I will give you a few examples.
We have an Oil well in Venezuela. As per the terms of our appointment, the notice period is 3 months. While the Venezuelan government has a rule that if a person does not work in a strategic position and he is in a graduate/officer/manager position, then his notice period will not be more than a month. And if a person is working in a non-graduate position and is not in an executive position, then his notice period cannot be beyond 2 weeks. The settlement needs to be paid within 24 hours of relieving; if not, there is a jail term for the HR head and the CEO. (Remember, Venezuela is a Socialist country, and hence all laws are employee-friendly.) My company is headquartered in one of the ASEAN countries. We have a few Indian expats working. An Indian expat was the reporting boss of the person transferred to Venezuela. This boss started harassing him, stating that he will not relieve him and had given instructions to HR to stop all his salary till further notice with a cc to that employee. Before the Venezuelan HR team could act on the mail, the concerned employee walked into the labor office and handed over the mails to the labor officer. The labor officer and the police landed up at the doors of our office. We had a huge problem. They wanted to arrest the HR head and also the CEO. Luckily the CEO was in Mexico on tour. The HR head was detained and taken to the Police station. We then intervened and pleaded with the aggrieved employee to settle the issue by taking double the money of his settlement and withdraw the complaint. Needless to say, the labor department and the cops made their money too.
The second example of mine indicates the laws on working hours. The working hours in India are 48 hours a week, but most countries are between 40 and 45 hours. But France is different. We have an operation in France. In India, other than workers, no one is paid overtime, especially Officers. France had 39 hours a week. But in the year 2000, when they found that unemployment was at the rate of 12%, they reduced the working hours by 12% and made it 35 hours a week so that everyone will get work. Any extra work will attract overtime. I still do not understand how this works. But then Socialism never had any logic, and France is a Socialist country.
We had transferred an Indian national to France. He was transferred from India. The Indian HR head did not bother to check the working hours in France and just issued the transfer orders stating the terms and conditions are the same, except for the salary. This is the normal format used. The office hours per week were 35. But this Indian expat had an Indian boss. And because the boss used to work late, he got the subordinate also to work late. 11 months down the line, the subordinate resigned to join Total oil company. When his settlement check was given, he took it happily. But one week later, one of the resigned employees' friends told him that he also needs to get payment for the overtime to him since he put in more hours than the 35 hours a week. He wrote to the Indian boss. The Indian boss did not bother to check with HR and instead refused to pay since the resigned employee was a manager, and he was transferred on the same terms of the previous assignment. The resigned employees had, incidentally, signed the overtime sheets and handed over to the boss when he was getting the clearances, and he was advised by the Indian boss that since he is a manager, he is not entitled to overtime and to remove the overtime sheets.
The employee then wrote to us. We passed on the mail to the France HR team. The HR team stated that he has to be paid overtime. The Indian boss said no. We insisted on getting a legal opinion, and when a legal opinion was taken, the lawyer advised us that the local laws supersede the terms of appointment. If we do not comply with local laws of working hours, then the fine that we would have had to pay would have been at the rate of 120,000 euros per week of violation. (This is calculated in terms of the size of the company). Hence, it had to be paid. And mind you, the employee got overtime pay equivalent to over 7 months' salary.
I hope I have been able to clarify to you how International HR operates.
Regards
From United+States, San+Francisco
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