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Fair Work review broad enough, experts say, but Govt commitment to change questioned

Thursday, 19 January 2012 | By Madeleine Heffernan

The review of the Fair Work Act is broad enough for people to get their views across, experts say, but the one-month timeframe and the Government's willingness to change the laws if need be are still in question, experts say.

 

"It's a good start," says Hall & Wilcox employment partner Karl Rozenbergs, referring to the background paper for the review released yesterday.

 

"The questions at first glance do seem to provide a good analysis of the system, but it'll be interesting to see where they take it from here."

 

"Overall, l think the one-month time limit does appear short. We're talking changes that are of the utmost importance to the economy, especially when it's not travelling that well."

 

The independent panel says they are "particularly keen to hear from small business and will convene discussions with the key small business representatives to ensure their views are heard".

 

Submissions are sought on a range of topics, including:

  • The link between the laws and productivity.
  • Whether the industrial tribunal should have wider scope to force parties into compulsory conciliation.
  • The effect of "good faith" bargaining provisions.
  • Whether the matters that can be discussed in enterprise bargaining agreements are too broad.
  • Whether legally sanctioned strikes are simpler under the new system.
  • Whether powers to suspend or terminate industrial action are appropriate.

According to Rozenbergs, the question of whether the Fair Work Act provides flexibility for business is a key one. This is particularly so for the retail sector, he says, who have argued that penalty rates for Sundays and public holidays provide a disincentive to open on those days.

 

Rozenbergs says there's a case for changing "general protections" within the act, which stipulate that an employer must not take any "adverse action" against an employee for exercising or proposing to exercise a workplace right, such as union rights, requesting flexible work arrangements and making a complaint about their employment.

 

"Has the streamlining of workplace protections helped people? Yes, but that doesn't stop us saying whether the laws are any good or not. My view is there are issues with the laws, rather than whether they've been put in one basket."

 

Rozenbergs says the issue of productivity not only pertains to employees but employers as well – if employers are spending more time worrying about how to dismiss someone, or whether they're paying someone the right amount and understand the awards, they are therefore less productive.

 

"Most employers are saying they're spending an inordinate amount of time dealing with workplace relations issues," he says.

 

Alice DeBoos, a workplace relations and safety lawyer at Middletons, says the areas that should receive the most attention are enterprise bargaining rules, general protection provisions and the transfer of business rules.

 

DeBoos points out that large sections of the Fair Work Act are not really that different to the act it followed, and the panel's attention will likely be focused on the differences between the two.

 

There's also cause for increasing the circumstances in which an independent umpire can be called in, as occurred with Qantas last year, she says.

 

"Under the legislation, in a long protected dispute about bargaining, there are few mechanisms to get an independent umpire to step in and try to resolve the dispute, which is frustrating because few can afford to take action," DeBoos says.

 

Hall & Wilcox partner Alison Baker says the paper gave her hope that it will be a balanced review and the objectives of business will be taken into account.

"The fact that they're looking at the general protection provisions is welcomed," Baker says.

 

She concurs that enterprise bargaining and the transfer of business provisions need further attention.

 

The panel – economist and Reserve Bank board member John Edwards, industrial relations professor Rod McCallum and former Federal Court judge Michael Moore – will release its report by the end of May.

 

The Australian Council of Trade Unions has flagged its submission will focus on bolstering the rights of people seeking permanent work.

 

The Australian Industry Group, meanwhile, says it's "vital that the Review Panel focus upon economic imperatives. The barriers to productivity and flexibility in the Fair Work Act need to be removed," AiG chief Heather Ridout says.