disrupting workplace culture and relationships as third parties become more active in workplaces, and the rise of adverse action threats is undermining trust and confidence making it more difficult to take on people who face employment barriers because of the resistance to more diverse forms of employment extending the time it takes for businesses to implement fundamental decisions increasing business costs. This experience shows that, as with any new piece of significant legislation, there is a need to evaluate experience of operation to ensure it allows ongoing adaptation. On that basis, it is clear that some important improvements can be made to the Fair Work Act. Other submissions to the review may well seek to trivialise the consequences of employer issues with the Fair Work Act and portray business as simply ‘wanting its own way’. The reality is that issues go to Australia’s capacity to protect and grow the economy. Their consequences are being felt increasingly by individual Australians. This is a time in our nation’s history when we need to facilitate the greatest possible speed of adjustment to take account of new conditions. What can be done? Summary of proposed amendments In this submission, Business Council member companies have identified provisions which are being used, frequently in combination, to undermine competitiveness, impede productivity and job creation, and add unnecessary delays and costs to doing business. Our recommended amendments are grouped around specific areas of the Fair Work Act. They seek to identify provisions or decisions that are supporting this behaviour and suggested changes that would prevent the Act being used in this way. Bargaining processes: amendments to improve the validity and efficiency of bargaining processes establish more robust bases of establishing majority support for bargaining, allow this support to be tested when negotiations are lengthy and unproductive; make them a precondition for protected action reduce the range of matters upon which bargaining can occur, and specifically make unlawful those clauses that restrict the use of, or regulate the payments to, contractors prevent late of bargaining representatives to the bargaining process, other than in exceptional circumstances ensure that the scope of bargaining relates only to the classes of employees with whom the employer has agreed to bargain. Flexibility arrangements: amendments to strengthen flexibility arrangements for both individuals and employers, and remove the capacity to restrict the use of contractors mandate the agreed individual flexibility model clause make unlawful those clauses that restrict the use of, or regulate the payments to, contractors.
businesses) can no longer ignore award obligations with (relative) impunity. rates favoured by employers as budget forecast and control tools have been made redundant. Some businesses have managed through EBAs to reintroduce flat rates and to renegotiate the shift structures to reduce their exposure, especially in 24x7 operations. However, to offset their higher costs they have rationalised rosters and reduced the number of hours they offer (that is, they employ fewer people). Awards need to be simple and straightforward for both employers and employees. All modern awards should be required to include provision for annualised salaries. This provision could appropriately be based on cl 17 of the Clerks – Private Sector Award 2010. The modern awards were developed by the AIRC in accordance with the applicable legislation, and government policy as reflected in numerous iterations of the Award Modernisation Request. The tribunal’s decisions also took account of submissions made by unions, employer associations and individual businesses. They reflect different inputs. Some employees are now covered by awards who had not previously been so covered. This includes some white collar staff within professional services firms where historically common law contracts have prevailed. Many staff were affronted by being and have not understood that the changes were a result of legislative change as opposed to employer policy. Created some suspicion. Because some occupational awards have been retained, staff within the same workgroup may have differential benefits, not have access to benefits previously provided by their employers (for example cashing out of annual leave) or be entitled to terms and conditions at odds with the standards of the industry in which they work (for example clerical staff on FIFO shifts). Some aspects of the Act relating to awards are unnecessarily complex – for example the provisions These provisions are so complex that many employers simply do not attempt to take advantage of Amend the legislation to remove the need to provide a guarantee of earnings, and simply stipulate that no
10: Compulsory superannuation contribution increase Relevant Object of the Act: Section 3, Object and paras (a), (b) and (c) panel questions: [No specific questions directed to this issue] The BCA supports the increase in compulsory superannuation contributions as part of responsible provisioning for the future of both individuals and the Commonwealth Budget. However, these contributions need to be seen as deferred remuneration and thus offset against potential wage increases. The BCA would, therefore, view with great concern any suggestion that the increase in compulsory superannuation contributions should not be offset against expected wage increases. 10: COMPULSORY SUPERANNUATION CONTRIBUTION INCREASE CAUSE/DRIVER/ENABLER CONSEQUENCE SOLUTION Lack of offset policy statement or legislation by government. ACTU statements that there should be no offset. Labour costs increased by amount of compulsory contribution increase – lack of recognition of superannuation as deferred salary and part of total hire costs. As government enacts to provide the proposed increase in superannuation contribution by employers, legislate specifically to offset against wage increases. Require FWA to take account of any compulsory increase in employer superannuation contributions when setting wages in terms of: annual minimum rates review low pay determinations arbitration where a bargaining period has been cancelled. APPENDIX 1: AUSTRALIA’S LABOUR STRENGTHS WEAKNESSES of supply and demand for labour Employment: the number of people employed has increased from 7.6 million in December 1991 to just under 11.5 million in 2011 Overall jobs growth weakened notably over the last year, with no net job creation from December 2010 to December 2011 (see charts), while ANZ data suggest job ads, a forward-looking indicator, have also softened over the last 12 months
EQUAL REMUNERATION What has been the impact of the changes to the test for the making of an equal remuneration order? Have FWA’s powers in relation to remuneration helped to ensure equal remuneration between men and women workers for work of equal or comparable value? TRANSFER OF BUSINESS Does the new broader definition of transfer of business help to clarify when a transfer of business occurs? See ‘6: Transfer of business’ What has been the effect of the new transfer of business provisions on corporate restructuring activities, such as and outsourcing? See ‘6: Transfer of business’ 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? See ‘6: Transfer of business’ GENERAL PROTECTIONS Do the general protections provisions provide adequate protection of employees’ workplace rights, including the right to freedom of association and against workplace discrimination? See ‘7: General protections/adverse action’ 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? See ‘7: General protections/adverse action’ Should dismissed employees be able to invoke the general protection provisions to challenge termination without any time limit on making an application? If so, why, and if not, why not? See ‘7: General protections/adverse action’ 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? See ‘7: General protections/adverse action’