The Federal Government would like to have you believe that it will be all smooth sailing on the industrial relations front for 2012. But there are some things that the Government and, in particular, the new Minister Bill Shorten, will have to work hard to sell as good for the economy. SMEs might find that the workplace environment gets a little tougher this year.
Plenty of commentators have already flagged that no one should expect too much from this review. The cynics would say, in classic “Yes Minister” style, that the result of this review is already known. Expect to see some minor tinkering with unfair dismissals, hopefully starting with the failed Small Business Fair Dismissal Code. Don’t expect the number of unfair dismissal claims to go down, however. The boom numbers reported by Fair Work Australia will continue.
The amount of industrial action – both protected and unprotected – will increase in 2012. A number of enterprise bargains completed before the Fair Work Act came into effect in 2009 will be up for renegotiation this year. Unions have been honing their strategies to best exploit good faith bargaining rules and the use of industrial action without too much pain to their members. Only shock tactics by employers, such as we saw with Qantas last year, will prevent industrial torture by a thousand bans, or stoppages. Add to that the prospect that the Fair Work Review may result in good faith bargaining focusing more on substantive than procedural outcomes.
The biggest question may yet be, “Are we heading for a return to arbitration of most disputes?” This would flag a major setback for enterprise bargaining, and for small and medium employers.
Regardless of what the High Court does in the Bendigo TAFE case, “general protections”, or “adverse action” claims will continue to increase. Try this for size: an employee has 60 days to file a claim compared to 14 for an unfair dismissal; the employer has to prove it did not take any adverse action against the employee for a prescribed reason; “adverse action” includes such amorphous concepts as “altering the employee’s position to the employee’s prejudice”.
Some aspects of this industrial legislation go back 80 or 90 years, and were designed to protect employee’s entitlements to award wages and their right to take part in union activity.
Unfortunately, that legislation has been bastardised to such an extent that just about anyone with a gripe against their boss – and there must be a few of those – can devise a claim, which at least forces employers to think about paying “go away money”; the same go away money that the government promised business it would rid the system of.
Employers need to be aware of the staged implementation of the national Work Health and Safety legislation. Not all states have adopted the legislation immediately, so you need to remain observant of different regimes in different states. South Australia, Tasmania, Victoria and Western Australia will retain their own systems for the time being, with the national model legislation being operative in NSW, Queensland, ACT and NT from January 1, 2012.
As has been extensively reported on SmartCompany and elsewhere, there is still a long way to go before the Government or any of its authorities, such as the Fair Work Ombudsman, can claim success in educating employers about minimum employee entitlements.
The FWO should be praised for indicating that employers who go to the trouble of getting advice will receive some consideration in the event that they are nevertheless in breach of the law. It remains to be seen how this will work in practice. Employers still need a definitive source of advice and information which they can rely on to protect themselves against prosecutions.
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