Report Recommends Major Workplace Law Changes
In December 2014, the Federal Government directed the Australian Productivity Commission (PC) to review the performance of the workplace relations framework in Australia, including the operation of the Fair Work Act 2009 (Cth).
In August 2015, the PC released its 1000-page Workplace Relations Framework Draft Report. Although the Report makes numerous recommendations, below is a summary of the key recommendations that are likely to impact on employers.
PENALTY RATES
Recommendation: Sunday penalty rates that are not part of overtime or shift work should be set at Saturday rates for the hospitality, entertainment, retail, restaurants and cafe industries. Weekend penalty rates should be set to achieve greater consistency between the hospitality, entertainment, retail, restaurants and cafe industries, but without the expectation of a single rate across all of them. Unless there is a clear rationale for departing from this principle, weekend penalty rates for casuals in these industries should be set so that they provide neutral incentives to employ casuals over permanent employees.
PUBLIC HOLIDAYS
Recommendation: Modern Awards should be amended to allow an employer and an employee to agree to substitute (or 'swap') a public holiday for an alternative day. It is thought that this option would provide both employers and employees with flexibility, and may encourage some businesses to open on public holidays where there would not otherwise be practical, including in the hospitality and retail sectors.
Recommendation: The National Employment Standards (NES) should be amended so that employers are not required to pay for leave or any additional penalty rates for any newly designated state / territory public holidays. This would prevent the NES from operating to increase the labour costs of public holidays each time a new State / Territory holiday was designated (this recently happened in Victoria with the introduction of the AFL Grand Final Eve holiday).
UNFAIR DISMISSAL
Recommendation: The Commission with should be provided with greater discretion to consider unfair dismissal applications ‘on the papers’ prior to commencement of conciliation, or alternatively, a more 'merit focused' conciliation process should be introduced to prevent 'go away' money that employers commonly pay to settle unfair dismissal claims that have little or no merit.
Recommendation: The law relating to Unfair Dismissal should be changed so that:
1. an employee can only receive compensation when they have been dismissed without reasonable evidence of persistent underperformance or serious misconduct
2. procedural errors by an employer should not result in reinstatement or compensation for a former employee, but can, at the discretion of the Commission, lead to either counselling and education of the employer, or financial penalties
3. the emphasis on reinstatement as the primary goal of unfair dismissal laws be removed
4. references to, and partial reliance on, the Small Business Fair Code, be removed.
GENERAL PROTECTIONS
Recommendation: The law relating to General Protections should be changed so that:
1. it is more clearly defined as to how the exercise of a workplace right applies in instances where an employee's complaint or inquiry is indirectly related to their employment
2. there is a requirement that complaints are made in good faith, and that the Commission must decide this via a preliminary interview with the complainant before the action can proceed and prior to the convening of any conference involving both parties
3. a cap on compensation is introduced for general protections claims
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