In recent times we have had a number of unique and challenging decisions come out of the Fair Work Commission – Skene and Rossato come to mind. We have also had a pandemic which has led to a number of changes to Modern Awards, directions and stand downs. New challenges have been forced on organisations to focus on flexibility and work from home and health and safety obligations have ramped up. As a result, Unions, Employer groups and the Government have “kicked” off the IR roundtable in an attempt to reform some key issues around employment law such as:
- Modern Award clarity and simplification
- Enterprise agreements
- Casuals and fixed term employees
- Greenfields agreements for new enterprises
- Compliance issues
As the Lawyers for Employers – what reforms do we think might occur?
Reform 1 – Sham Contracting
It is possible that the sham contracting provisions under the Fair Work Act may well expand. Currently, General Protections is a substantial way already for business to be in contravention of “sham contracting”. The Fair Work Commission have made it clear that uber drivers and the like will not be considered employees however the extensive “gig economy” does give rise to a requirement for some protections. Those in marketing, software and technology development, creative design and even consulting currently are in circumstances that were not necessarily contemplated by current legislation.
Those protections are already in some respects there for larger organisations through modern slavery legislation – however will the Fair Work Act follow suit. The big need in this space is a clear definition of “Contractor” – which may or may not align with taxation, workcover and superannuation legislation. Clarity around contracting is very much required.
Reform 2 – Casual Employees
The cases of Skene and Rossato led to casual employees being paid annual leave entitlements. Although the media have overly sold the relevance of the cases it does still create a lot of uncertainty especially around labour hire companies, those who engage labour hire companies and industries who have fly in fly out (FIFO) workers.
A clear way forward and one pushed by a number of stakeholders is that any casual loading off sets any claims for leave. This makes common sense. Double dipping should not be encouraged and if required should be legislated against. Whether the reforms go that far will depend very much on the IR roundtable.
Reform 3 – Enterprise Bargaining
Bargaining for a long time has been plodding and for many organisations a waste of time and resources. The reason being, it is overly rigid and frankly, provides very little benefit for Employers in its current guise. There is no real practical incentive to engage in bargaining at the moment.
For example, a minor error around pre-approval steps can be fatal to an Agreement. Although some cases have recently changed this extreme, at this point in time it is no surprise that bargaining has fallen.
There are some major issues to look at:
- Extension of 4 year maximum terms
- Loaded ordinary hourly rates
- The easing of the Better Off Overall Test (Boot Test)
Reform 4 – Unfair Dismissal and General Protections Claims
Unfair Dismissal and General Protections claims are relatively easy to file. The problem is, some employee advocates are used to making as little effort as possible to file claims. We regularly deal with employee advocates who merely use the following line (or something to this effect) in the application:
“The termination of employment was unfair, unjust or unreasonable”
This should be, frankly, unacceptable. It may well be that instructions have been provided on the 21st day to file a claim (employees have 21 days to file an unfair dismissal or general protections claim) – however, if an employee has filed a claim against their employer they should be forced to establish why the employment was unfair or unjust or unreasonable. Or in general protections, what is the workplace right? What is the adverse action? Why is there a causal link?
There should be at least some substance to the application, at the very least something for an Employer to defend that aligns with something akin to the facts.
Potentially this could be checked by a registrar at the Fair Work Commission and deemed unacceptable if this type of information is missing. It will reduce the number of vexatious claims that are filed against employers. Or at the very least, forces employee representatives to press their claim properly and with some effort.
There are many other reforms that the IR Roundtable are looking at including the Modern Awards, expansion of the Fair Work Ombudsman’s power, underpayment of wages and crack downs on non-compliant pay rates. Hopefully these reforms come in and help business as opposed to holding back the potential of organisations in Australia – at the same time as providing adequate protections as required.
About the Author
Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.