THE FEDERAL GOVERNMENT’S forthcoming workplace reforms will result in a lawyers’ picnic, with a dramatic increase in both legislation as well as complexity and uncertainty for employers
THE FEDERAL GOVERNMENT’S forthcoming workplace reforms will result in a lawyers’ picnic, with a dramatic increase in both legislation as well as complexity and uncertainty for employers.
Lawyers acting both for employers and unions will be looking for unintended consequences, loopholes, uncertainties and grounds for potential test cases, according to Andrew Stewart, professor of law at Flinders University and consultant to law firm Piper Alderman.
“There are going to be a huge number of challenges and opportunities presented by the changes. There will be transitional issues from the old system to the new system for just about every business in the country,” he said.
“These new changes will potentially affect every employer. Every employer is going to need advice about what the implications and the possibilities are for them.”
The direction that workplace reform has been heading in the past few years has involved greater complexity in workplace regulation, and Stewart said business would struggle most in the short to medium term with issues such as employee initiated litigation.
“In addition is just the sheer complexity of the legislation. For the last 15 years, what used to be the Industrial Relations Act is now the Workplace Relations Act has gradually been coming to resemble tax legislation,”he said.
“It has been getting larger, the section numbers have had all kinds of letters added to them and have been harder and harder to remember.
“But most importantly the sheer volume of detail has increased considerably. And as every tax lawyer knows, the more detail you add, the more potential there is for loopholes to emerge.”
While Stewart predicted a reduction in unfair dismissal proceedings, he said there would be a corresponding increase in the number of claims for discrimination and workers compensation, and in NSW and Queensland, potentially unfair contract claims, as law firms raced to find new ways of raising unfair termination issues.
He also said unions will find the going tougher under the new legislation, with challenges to their resources in particular. “But strong and well organised unions will survive and there will be a number of workplaces where you won’t see dramatic changes at all.”
Stewart said there was an established balance of power between management and unions that won’t be disturbed by the changes.
“In every workplace, employees will potentially be faced with ‘take it or leave it’ agreements that could result in their working conditions deteriorating,” he predicted.
“It won’t happen in some workplaces because [they] won’t try and use the new regime to cut their labour costs. But potentially, whether you are working in a big workplace or small workplace, you could be faced with your boss asking you to sign an agreement that radically changes your employment conditions,” he said.
Unions also accused the Federal Government of providing advice to employers on how to bypass protections for workers as part of its industrial relations changes.
Unions NSW secretary John Robertson said the Government’s Office of the Employment Advocate website provided template agreements with wording that would free employers of obligations to provide annual leave, meal breaks and penalty rates where Australian Workplace Agreements were silent on the issue.
“The fact that the Government is advertising how to get around these flimsy protections shows what a farce the so-called softening of the laws actually are,” Robertson said.
“The bottom line is that any employer will be able to offer contracts that trade off all penalty rates and place meal breaks and annual leave at the discretion of the employer.
On the other side of the fence, some employer groups said the Federal Government’s reforms did not go far enough. The Australian Chamber of Commerce and Industry (ACCI) warned employers to remain wary of excessive government regulation of employer and employee relationships.
“The [Federal Government’s] package outlines some extremely important reforms. However, it is not a new workplace relations system. It is a further welcome step from an old system of arbitration towards a new system of agreement making,” said Peter Hendy, ACCI chief executive.
“An excessive level of regulation of employer and employee relationships will remain, as governments progressively replace a regulated arbitration system with a regulated bargaining system and a legislated safety net.”
Stripped of claim and counter claim, he said the reality will be that when these new laws commence, employers and employees will still be bound by almost all existing employment regulation in awards but will have important additional choices and incentives to do better through workplace agreements.
Hendy said employers will also be concerned at the proposal to include in agreements a requirement that any changes to award provisions concerning monetary entitlements be expressly identified.
“This is an unnecessary level of government hand-holding and red-tape and is inconsistent with the de-linking of awards from agreements. It will be vital that employers secure expert assistance … when negotiating and drafting agreements, otherwise award provisions may still apply.”
