The extent to which this has occurred varies – there is little consistency in the modern award system in level of prescription, nor in the extent to which they contemplate diversity of implementation – some are good some others less so, and this disparity does not arise from the differences in industry. Third, employees and employers can enter individual flexibility arrangements. Individual flexibility arrangements do not provide an adequate mechanism for providing flexible working arrangements. Both employers and employees are dissuaded from entering them because of the capacity of a party to terminate unilaterally on written advice providing not more than 28 days’ notice [s 145(4)(a)] and the term in the standard clause precluding an IFA as a term of employment. The capacity to bargain their terms means that significant bargaining time can be spent on them, usually resulting in reduced coverage. Fourth, business flexibility is also affected by other statutory rights which are provided by the Fair Work legislation. Obvious examples of this are restrictions on termination of employment provided by Part 3-2 and protection of rights under Part 3-3. To avoid misunderstanding it should be noted that NSWBC/ABI, and their members, accept that vulnerable employees should be protected from arbitrary termination, and they do not propose exempting classes of employer. The broad capacity to bring or threaten actions under part 3-3, the costs of formal (and informal) defence, and the uncertainty of outcome impacts both performance management and flexibility detrimentally and disproportionately. The importance of flexibility is also with further below. Section 3(a) provides as a part object of the Fair Work Act that it provide the framework in a way which takes account of Australia’s international labour obligations. There is no reason to suppose that the Fair Work legislation breaches international labour obligations nor that amendments to the legislation would have that effect. In the face of a specific
commercial nature of the relationship entered into and accordingly should have remained within that legislation. Recommendation 26 The protection for independent contractors should be removed from the Fair Work Act and dealt with under the Independent Contractors Act 2006 (Cth). Extended Provisions While the general protections provisions in the Fair Work Act now extend to ‘workplace rights’ and to circumstances arising during the employment (as opposed to the unlawful termination provisions in the Workplace Relations Act 1996 (Cth)) that include entitlements arising under a workplace law or instrument, such as a modern award or enterprise agreement, such protections already existed, in large part, in the NSW Victimisation Provisions, which include protections in circumstances where a person: (a) exercises functions conferred under the NSW Act; (b) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument; (c) informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument; and (d) participates, or proposes to participate, in proceedings relating to an industrial matter. In circumstances where the NSW Victimisation Provisions had become inaccessible to employees covered by the federal legislation under both the Workchoices Legislation and the Fair Work Act, it was appropriate for similar provisions to be adopted at a Federal level. However, in doing so, the rights have been extended so that employees now have unprecedented ‘protection’ by the inclusion of section 341(1) (c) (ii) of the Fair Work Act, which provides protection as follows: A person has a workplace right if theperson is … able to make a complaint or inquiry… if the person is an employee … in relation to his or her employment. While at first glance this protection appears to contemplate the former protection against
Recommendation 34 The Fair Work Act should be amended to require FWA to dismiss unmeritorious claims at the conciliation stage. Small businesses get a special mention in the unfair dismissal provisions. The Fair Work Act contains a mechanism by which the Minister may declare a Small Business Fair Dismissal Code. The definition of “small business” is contained in section 23 of the Fair Work Act. Basically, a national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time. This calculation is performed by headcount and is not on full time equivalents. A number of NSWBC/ABI members raised as a result of counting a casual the same as a full-time employee in the calculation of employees to determine whether an employer is a small business employer. Recommendation 35 The definition of small business employer in section 23(1) should be amended to: “A national system employer is a small business employer at a particular time if the employer employs fewer than 15 full time equivalent employees at that time”. Further, for the purpose of calculating the number of employees, employees employed by an associated entity are into account. “Associated entity” has the meaning given by section 50AAA of the Corporations Act 2001. This definition is very broad and can include companies outside of Australia. For example, a company incorporated in Australia may have five employees employed in Australia. Its holding company is based in the United States of America and it has 15 employees. The holding company is an associated entity of the employer in Australia which means that the number of employees for the purposes of the unfair dismissal laws is