Questions participants may wish to consider when preparing their submissions

General

1. Has the Fair Work Act created a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians? If so, how? If not, why not?

In my view no it does not promote national economic prosperity especially in the case of enterprise agreement making, unfair dismissal and adverse actions claims.

Unfair dismissal simply means that anyone who makes a claim is able to demand settlement from the employer without having to attend face to face conciliation. If the employer does not choose to fight the claim they have to pay. If they want to fight the claim, generally they have to involve other staff has witnesses, pay a solicitor or representative, spend hours in court etc etc. It has got to the stage where many of my clients decide it is too hard to terminate anyone so staff are not being challenged for some serious offences, particularly towards older people in aged care.

If an employee chooses to say that they were dismissed for pursuing a workplace right the employer has to prove this was not the case. How subjective is this in most cases? Representatives are easily able to establish that the employee asked a question (about their pay rate for example) and then later they were dismissed. It is irrelevant to the ability to actually make a claim whether there were other clear demonstrable reasons for the dismissal, the claim is made and the employer is stuck with having to defend themselves. They again either pay up or face expensive litigation. As the employee is highly unlikely to have costs awarded against them, there is no reason for employees not to pursue claims.

In relation to agreement making, there is really less flexibility in the process as the modern award is the measuring tool for the better off overall test. This seems to have to be met on a provision by provision basis in many cases and where an industry is not able to simply pass on extra costs to their clients, there is not a lot of options to come to agreement which have some flexibilities and trade offs. 2. Can the Fair Work Act provide flexibility for businesses and is this being achieved? If so, how? If not, why not?

3. Does the Fair Work Act adequately take account of Australia’s international labour obligations?

4. Has the Fair Work Act facilitated flexible working arrangements to assist employees to balance their work and family responsibilities?

5. Has the Fair Work Act’s focus on enterprise level collective bargaining helped to achieve improved productivity and fairness?

Not in the aged care sector in my experience. All that generally happens is the unions achieve more and the employers give more. There is no willingness to trade off any provision or condition. If the employer attempts to achieve an agreement directly with their staff the union seems to be able to contact the staff and have the agreement voted down. Staff who are almost all part time are not always that interested in an EBa and all the issues the unions are concerned with so do not tend to want to be involved in the process, but will be suspicious of change and chose to not vote or vote against an agreement.

6. What has been the impact, if any, of the Fair Work Act on labour productivity?

7. What has been the impact of the creation of a national workplace relations system for the private sector? What has been the impact of the system being constitutionally underpinned by referrals of subject matters/powers from the states as well as the corporation’s power of the Constitution?

Safety net

8. Is the safety net established under the Fair Work Act fair and relevant?

9. Is the safety net simpler, more streamlined and easier to read and apply than the previous arrangements?

10. What are the advantages and disadvantages of the Fair Work Act providing a safety net of employment conditions on a national basis through the National Employment Standards and modern awards rather than a state by state basis?

11. Does the Fair Work Act allow for safety net terms and conditions of employment to be set in a way that is appropriately industry or occupationally specific? If not, why not? 12. Are employees responsible for the care of young children using the right to request provisions under the National Employment Standards to negotiate flexible working arrangements or request additional unpaid parental leave in order to care for children? If not, why not?

13. Do Individual Flexibility Arrangements, as provided for in modern awards, allow employers and employees to individually tailor modern award conditions to meet their genuine personal needs? If so, how? If not, why not?

Employers are too unsure of the flexibility provisions to utilise them. There is no “test” as whether the arrangements would meet the requirements and there is a risk that if they were found not to the employer would face some type of claim and perhaps fine.

14. Are employees appropriately protected when making Individual Flexibility Arrangements? Is the safety net of minimum employment conditions appropriately guaranteed and protected from being undermined?

15. How could the operation of the safety net be improved, consistent with the objects of the Fair Work Act and the Government’s policy objective to provide a fair and enforceable set of minimum entitlements?

16. Do the criteria for Fair Work Australia’s (FWA) setting of minimum wages fairly balance social and economic factors?

17. What has been the impact of requiring FWA to implement minimum wage adjustments from 1 July each year, rather than at a time of the tribunal’s choosing?

18. Without examining particular content in modern awards (which is a matter to be dealt with in FWA’s review of modern awards), what has been the impact on employers, employees and regulators of consolidating the large number of state and federal awards and transitional instruments that applied before the Fair Work Act and replacing them with significantly fewer modern awards made on a national basis?

19. What has been the impact of providing an award system which includes modern awards that cannot be varied (except in limited circumstances) other than during four-yearly reviews by FWA, or in the initial FWA interim review in 2012?

Bargaining and agreement-making

20. Does the bargaining framework promote discussion and uptake of measures to improve workplace productivity?

Not in aged care. It is difficult to improve productivity in a service based industry which is not able to increase charges to customers as they want. Nor is it a matter of increasing productivity in which is already an industry with little room to move. 21. How have employers pursued productivity improvements during bargaining for a new enterprise agreement? Are there any obstacles to achieving productivity improvements in bargaining in the legislation? How do these obstacles differ from the situation that existed prior to the Fair Work Act?

Again we have the assumption that all industries are in the position of improving productivity. I am sure this is not the case in aged care, disability, childcare, health care in general.

22. Have enterprise agreements helped employees to better balance work and family responsibilities?

23. What has been the impact of allowing a wider range of matters to be included in enterprise agreements by removing the list of “prohibited content” provided under the Workplace Relations Act? What has been the impact on bargaining and productivity? What has been the impact on employees’ capacity to be represented in the workplace?

E may well see this as the aged care EBA negotiations for the next round in Victoria are about to commence

24. Did Individual Transitional Employment Agreements help to provide greater certainty of wage costs for employers using Australian Workplace Agreements and assist in the transition to a system focussed on enterprise level collective bargaining?

25. Are Individual Flexibility Arrangements allowed for under the flexibility terms of enterprise agreements providing employers and employees with the flexibility to tailor working arrangements to meet their genuine needs? If so, how? If not, why not?

Perhaps in some industries or instances but not in victoria in aged care as the employers are generally unsure of the absolute parameters around the use of this type of agreement and are unwilling to risk being found to be outside them.

26. Are employees appropriately protected when making Individual Flexibility Arrangements?

I would assume it is the employers that may end up not being adequately protected

27. Did the replacement of the fairness test with the no-disadvantage test and then the better off overall test improve protection of employment conditions in the agreement-making process?

Yes as employers ability to be flexible, such as it was, is now a lot more limited as the new test tends to be applied point by point against the modern award and employers have to try to estimate what level of pay increase would make up for some provision in an EBA which is less than one in the modern award. Generally it is more difficult to change any one provision in exchange for another

28. Has the new approval process under the Fair Work Act expedited the approval of agreements and provided greater certainty for employers and employees compared to the approval process under the previous legislation? If so, how? If not, why not? What has been the impact on employers, employees and their representatives of the changes to the agreement approval processes?

29. How have the good faith bargaining requirements affected enterprise agreement negotiations?

a. Are there ways in which the good faith bargaining requirements could be improved to better facilitate bargaining?

b. Are the powers possessed by FWA adequate to remedy breaches of the good faith bargaining requirements?

30. Have majority support determinations and scope orders encouraged enterprise bargaining? If so how? If not, why not?

31. Has the low-paid bargaining stream encouraged bargaining in workplaces and/or industries that have not historically engaged in enterprise bargaining?

Equal remuneration

32. What has been the impact of the changes to the test for the making of an equal remuneration order?

33. Have FWA’s powers in relation to equal remuneration helped to ensure equal remuneration between men and women workers for work of equal or comparable value?

Transfer of business

34. Does the new broader definition of transfer of business help to clarify when a transfer of business occurs?

35. What has been the effect of the new transfer of business provisions on corporate restructuring activities, such as in-sourcing and outsourcing?

36. Do the range of matters which FWA must consider when making an order in relation to a transfer of business strike the right balance between protecting employee and employer interests?

General protections

37. Do the general protections provisions provide adequate protection of employees’ workplace rights, including the right to freedom of association and against workplace discrimination?

The general protections provisions are not being fully utilised as yet in my experience but this is changing. In my view, the emphasis of this question again makes an assumption that it is the employee who has the issues and not the employer. The general protections provisions are capable of being misused by the employee are being so misused on occasion. Where an employer has dismissed an employee for a valid reason, the employee is able to make a general protections claim which is not based on fact. However, the employer is then forced to be the party to prove that any action taken was not done for any reason other than the poor behaviour or actions of the employee. This includes employees who are dismissed in their 6 month minimum employment period. They may not have had warnings and there may be no written complaints about them, but the employer has taken the action to terminate due to some issue which has arisen. The employee is then able to simply claim some alleged adverse action and the employer is transported back to having to prove why the person was terminated. This totally defeats the purpose of the 6 month minimum employment period. The employee can see the writing on the wall and so they lodge a complaint of say, bullying and harassment. The employee terminates their services for say slapping a resident across the face. The employee decides to claim that as they had asked about working an extra shift the day before the slapping incident; this must be why they were dismissed....for seeking a workplace right. The onus is on the employer to prove this is not the case. Expensive, the federal court, witnesses involved etc. So...pay out time. The shoe has been put firmly on the employee’s foot with the general protections provisions

38. Do the provisions provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of the general protections?

39. Should dismissed employees be able to invoke the general protection provisions to challenge their termination without any time limit on making an application? If so, why, and if not, why not?

No...this would be totally unfair for an employer who has the onus of proving such a claim is false. In aged care this would mean that witnesses would no longer be able to contacted, witnesses would not recall accurately or at all what happened months after an event, employers would be unable to fairly defend a claim made months after an event.

40. Has the consolidation and streamlining of workplace protections into the general protections provisions made it easier for employers and employees to understand their rights and obligations? What impact has this had?

It may have in some cases but in my experience not generally. There are very few employers in the aged care sector that have breached the requirements even despite not really knowing or understanding them. Most employers in this sector are so desperate for staff, they are only willing to discipline staff or take them upon an issue if they are of the view there is a genuine need to do so. I think most employers do not understand how easy it is for an employee to make a claim of adverse action and where this has occurred my clients have been both mortified and shocked. 41. Section 351 of the Fair Work Act proscribes discrimination "because of the person's" race, sex, etc. This provision appears in Part 3-1 Division 5. This Division is headed "Other Protections". Would section 351 and any related provisions be better placed in a Division dealing solely with discrimination?

Unfair dismissal

42. Do the unfair dismissal provisions balance the needs of business and employees’ right to protection from unfair dismissal?

Again the emphasis on the employees’ rights. There seems to no recognition that there are two parties involved, an employee and an employer. Without the employee there is no business, without the employer there is no business.

Unfair dismissal is a process which in my view is not balanced as the employee holds all the cards and stands to lose nothing no matter who is in the wrong. The employee is able to make all sorts of claims which are only ever tested if it goes to hearing. Most do not go hearing as the employer pays out. The employer settles due to many concerns such as the cost of pursuing the matter, the involvement of other staff members and management, the stress involved and the likelihood that unless the process was perfect they will lose. The employer has a much higher onus of proof than the employee does. This is the case no matter whether the matter involves a dismissal after a disciplinary process or a dismissal for serious misconduct. The employer has to be the party who has made not one small error. One small error is fatal to their case. No one is perfect so guess where the blame falls.

If employees have to give evidence against a former employee, those employees are likely never to make a complaint again. There was a case where the employee was dismissed for dragging a resident in an aged care facility across a room. The witnesses were subjected to hours of cross examination and made to try to estimate how far the person was allegedly dragged and hours of questions. The three staff involved swore they would never report anything again. The dismissed person was represented by a barrister supplied byte union. The person was found to have been unfairly dismissed and awarded twelve weeks pay. The employer had been asked to settle for 8 weeks pay but was so sure of their case that they refused to settle. The case had taken 9 days and their Director of Nursing had been in the witness box for 8 hours. She was distressed and wanting to resign at the end of it. Why would this employer go through this process again. Two months later at another employer’s facility she was again in trouble this time for a number of medication errors. She was represented by the union. She agreed she should not be practicing as a division 1 nurse and resigned her position.

There are so many cases where the employee deserved to be terminated but their representatives have used the system so well they have extracted many weeks pay out of employers so that the employer did not have to go to hearing.

The other issue I personally detest is that so called conciliations are done on the phone. There is no way it is a proper conciliation as the parties are not forced or able to confront each other. It is not a process whereby either the parties, their representatives or the conciliator are able to judge the way the parties present their cases. The parties can lie through their teeth without facing the other. This is so less likely to occur where they are face to face and more of the facts come out when they are face to face.

This process saves money but is not a transparent or fair process. There is a lot of pressure on the conciliators and employers to have the matter settled which means the employer pays.

43. Consistent with the Government policy objectives, does the Fair Work Act provide genuine unfair dismissal protection? If so, how, if not, why not?

Yes

44. Are the procedures for dealing with unfair dismissal quick, flexible and informal and do they meet the needs of employers and employees? What is the impact of the changed processes upon the costs incurred by employers and employees?

No. Refer to above. Additionally, where an employer advocate is unable to attend the conciliation, there is no flexibility by FWA., However, the employee is able to go on holidays or be unavailable and the date is changed without any problem. Employers do want to be represented at these conciliations and should be able to have the representative of their choice as should the employee. 45. Has the ability of FWA to deal with unfair dismissal claims in a more informal manner improved the experience for participants?

No...not the employer only the employee.

46. What has been the impact of the introduction of qualifying employment periods before an employee is eligible to make a claim for unfair dismissal? Has the 12 month (small businesses) and 6 month (larger businesses) qualifying period provided clearer guidance to employers and sufficient time for employers to assess the suitability of an employee for a role?

It is clear so it is better. However, as the employee is able to use the general protections provisions during this period the purpose is sometimes defeated.

47. Is FWA’s emphasis on telephone conciliation in unfair dismissal matters desirable? If so, why, if not, why not?

NO...refer to above comments

48. Are the remedies available in the case of an unfair dismissal appropriate?

Yes

49. Is the Small Business Fair Dismissal Code an effective tool in helping small business to understand their obligations and fairly dismiss employees?

Not in my experience. In the two such matters I have dealt with the small business was subjected to the same process and tests larger employers have to meet with no consideration given by the union to their small business status. The one situation that went to conciliation was not dealt with any differently becsue they were a small employer

50. What has been the impact of removing the genuine operational reasons defence to an unfair dismissal claim and replacing it with the requirements for genuine redundancy?

This has severely curtailed the employers ability to make a decision to restructure based on say qualifications or needs of the business.

51. Have the unfair dismissal provisions under the Fair Work Act had an impact on the ability and willingness of business to take on new employees?

In aged care the employer does not have that option. However it has impacted on their willingness to actually dismiss employees who deserve to be dismissed.

Industrial action

52. Is the process for applying for and conducting protected action ballots simpler under the new system? If so, why, and if not, why not? 53. What effect has the obligation for the Australian Government to fund the full cost of conducting a protected action ballot had on the propensity of employee bargaining representatives to make an application for a protected action ballot order?

54. Should applications for protected action ballots be permitted where no majority support determination has been made by FWA, and where the employer has not agreed to engage in collective bargaining? If so, why, and if not, why not?

55. Are the powers and procedures possessed by FWA to suspend or to terminate protected industrial action adequate to resolve intractable disputes? If not, why not, and if so, why?

56. Should compulsory conciliation play a more prominent role, either generally, in the enterprise bargaining regime, in settling disputes over the application of enterprise agreements or more especially in the machinery which governs the settlement of intractable disputes?

57. Are employees able to resort to protected industrial action more easily or quickly since the passage of the Fair Work Act? If so, which provisions of the Act facilitate this?

58. Is the taking of industrial action in support of pattern bargaining effectively prohibited by the Fair Work Act?

59. What has been the effect of the removal of the mandatory four hour minimum deduction of pay for protected employee industrial action?

60. What has been the effect of allowing for a proportion of an employee’s pay to be withheld in the case of a partial work ban?

61. What has been the effect of removing the reverse onus of proof for employees taking industrial action out of a legitimate concern for his or her health or safety?

Right of entry

62. What has been the impact of union right of entry being linked to the right of a union to represent the industrial interests of an employee, rather than coverage by a type of instrument?

63. Do the right of entry provisions balance the right of unions to enter workplaces to meet with employees and investigate breaches of legislation and the right of employers to go about their business without undue inconvenience?

Institutional framework

64. Are the processes and procedures set out in the Fair Work Act that apply to FWA, the Federal Magistrates Court of Australia and to the Federal Court of Australia appropriate having regard to the matters coming before it? What changes, if any, would you suggest? 65. Does the consolidation of workplace relations institutions provide more easily accessible services and information to users of the national workplace relations system?

66. Does the requirement for FWA to conduct and publish research relevant to minimum wages help to better inform parties who make submissions to the Minimum Wage Panel?

67. Do the enhanced powers of Fair Work Ombudsman (FWO) inspectors assist in the expeditious resolution of matters under investigation?

68. In comparison to the previous arrangements, does the increased educative role for the FWO help employers and employees to better understand their rights and obligations under the Fair Work Act?

69. What has been the impact of the new ability for the FWO to accept enforceable undertakings as an alternative to prosecution?