The Liberals are in and Tony Abbot has promised to "restore
the balance back to the sensible centre" in industrial
relations by not replacing, but improving the current Fair Work
Act. What does this actually mean for employees and employers?
From the Liberal
Party's proposed policies we feel that employers control
over certain aspects of employment will increase, the most
significant being a greater capacity to defend unfair dismissal
claims, more opportunities to use individual flexibility
arrangements and an increased focus on using internal complaint
processes in instances of bullying.
Below we outline potential changes that may be introduced and
their practical implications.
Improving the Fair Work Commission and considering the
introduction of an independent appeal
jurisdiction. It is anticipated any such appeal
jurisdiction would be in between the Fair Work Commission and the
Federal Circuit Court or Federal Court. This may increase the
ability of employers to defend unfair dismissal claims and increase
the predictability of these cases.
Ensuring Individual Flexibility Arrangements
can be used even where there is an enterprise agreement. Employers
should take this opportunity to review their enterprise agreements
and ensure they are leveraging flexibility arrangements to their
A paid parental scheme (paid by the
government) providing 26 weeks paid parental leave to mothers which
is tied to their remuneration and not tied to the minimum wage.
Individuals would also receive superannuation during this period.
You may want to consider the implications of that scheme on any
policy you currently have in place.
Regarding workplace bullying the Liberal party
has proposed that before employees can access the Fair Work
Commission via a stop bullying order they must attempt to resolve
the issue through mechanisms in their workplace. We see the
addition of this new step to the bullying complaint process as an
opportunity for employers to mitigate potential bullying claims
early. Employers can enjoy some protection by reviewing their
existing internal complaints system. If one does not exist, this is
the ideal time to implement an internal complaints and
Restricting the rights of access of industrial
bodies to workplaces. This may involve removing the right
of entry to hold discussions and replacing it with something like a
right of entry once an employee requests the industrial
representative to enter.
Asking the productivity commission to
undertake a review of the Act, which may lead to amendments to the
Re-establishing the Australia Building and Construction
Commission to administer a national code and guidelines in
an effort to tackle undesirable industrial association
action in the building industry.
Stricter reporting rules for industrial
associations to ensure members' funds are not being
misused. The suggestion is that by applying corporate regulatory
standards this will assist in ensuring transparency of expenditure
and less misuse of funds. The Liberal Party also envisages faster
investigations in allegations of misuse. Creating a Registered
Organisations Commission which will have statutory powers to
enforce the law.
Tailor services provided by the Fair Work Ombudsman for
small business and ensure there are increased
resources to help small business.
In summary according to official Liberal policy it is not likely
that employers should expect massive changes which are difficult to
adapt to, but rather some minor changes with which compliance will
be relatively easy.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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