employer and an employee to agree to substitute a public holiday for an alternative day into all modern awards. conditions on the right to approve or refuse a proposed substitution arrangement. 4.2 The Australian Government should amend the National Employment Standards so that employers are not required to pay for leave or any additional penalty rates for any newly designated state and territory public holidays. Support. 4.3 Periodically, the Australian, state and territory governments should jointly examine whether there are any grounds for extending the existing 20 days of paid annual leave in the National Employment Standards, with a cash out option for any additional leave where that suits the employer and employee. Such an extension should not be implemented in the near future, and if ultimately implemented, should be achieved through a negotiated tradeoff between wage increases and extra paid leave. Support measures to improve flexibility by agreement and where labour costs are not increased overall. 5.1 The Australian Government should either provide the Fair Work Commission with greater discretion to consider unfair dismissal applications ‘on the papers’, prior to commencement of conciliation; or alternatively, introduce more merit focused conciliation processes. Support. 5.2 The Australian Government should change the penalty regime for unfair dismissal cases so that: • an employee can only receive compensation when they have been dismissed without reasonable evidence of persistent underperformance or serious misconduct • procedural errors by an employer should not result in reinstatement or compensation for a former employee, but can, at the discretion of the Fair Work Commission, lead to either counselling and education of the employer, or financial penalties. Support, and propose greater practical emphasis on costs regime and option of security for costs as opposed to higher lodgement fees. 5.3 The Australian Government should remove the emphasis on reinstatement as the primary goal of the unfair dismissal provisions in the Fair Work Act 2009 (Cth). Support.
5.4 Conditional on implementation of the other recommended changes to the unfair dismissal system within this report, the Australian Government should remove the (partial) reliance on the Small Business Fair Dismissal Code within the Fair Work Act 2009 (Cth). Oppose. The Fair Dismissal Code has made conducting a fair termination process much more manageable for small business. 6.1 The Australian Government should amend the Fair Work Act 2009 (Cth) to formally align the discovery processes used in general protection cases with those provided in the Federal Court’s Rules and Practice Note 5 CM5. Support. 6.2 The Australian Government should modify s. 341 of the Fair Work Act 2009 (Cth), which deals with the meaning and application of a workplace right. • Modified provisions should more clearly define how the exercise of a workplace right applies in instances where the complaint or inquiry is indirectly related to the person’s employment. • The FW Act should also require that complaints are made in good faith; and that the Fair Work 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. Support. 6.3 The Australian Government should amend Part 3-1 of the Fair Work Act 2009 (Cth) to introduce exclusions for complaints that are frivolous and vexatious. Support. 6.4 The Australian Government should introduce a cap on compensation for claims lodged under Part 3-1 of the Fair Work Act 2009 (Cth). Support a cap in line with the compensation cap for unfair dismissal. 6.5 The Australian Government should amend Schedule 5.2 of the Fair Work Regulations 2009 (Cth) to require the Fair Work Commission to report more information about general protections matters. Adequate resourcing should be provided to the Fair Work Commission to improve its data collection and reporting processes in this area. Support.
8.1 In making its annual national wage decision, the Fair Work Commission should broaden its analytical framework to systematically consider the risks of unexpected variations in economic circumstances on employment and the living standards of the low paid. Support. 9.1 The Australian Government should amend the Fair Work Act 2009 (Cth) so that the Fair Work Commission is empowered to make temporary variations in awards in exceptional circumstances after an annual wage review has been completed. Support. 9.2 The Australian Government should commission a comprehensive review into Australia’s apprenticeship and traineeship arrangements. The review should include, but not be limited to, an assessment of: • the role of the current system within the broader set of arrangements for skill formation • the structure of awards for apprentices and trainees, including junior and adult training wages and the adoption of competency-based pay progression • the factors that affect the supply and demand for apprenticeships and traineeships, including the appropriate design and level of government, employer and employee incentives. Support. 12.1 The Australian Government should amend the Fair Work Act 2009 (Cth) to: • remove the requirement for the Fair Work Commission to conduct four yearly reviews of modern awards • add the requirement that the Minimum Standards Division of the Fair Work Commission review and vary awards as necessary to meet the Modern Awards Objective. To achieve the goal of continuously improving awards’ capability to meet the Modern Awards Objective, the legislation should require that the Minimum Standards Division: • use robust analysis to set issues for assessment, prioritised on the basis of likely high yielding gains Support.
breaching good faith bargaining requirements. 15.7 The Australian Government should amend the Fair Work Act 2009 (Cth) so that if an employer and union have not reached a negotiated outcome for a greenfields agreement after three months, the employer may (as illustrated in figure 15.5): • continue negotiating with the union • request that the Fair Work Commission undertake ‘last offer’ arbitration of an outcome by choosing between the last offers made by the employer and the union • submit the employer’s proposed greenfields arrangement for approval with a 12 month nominal expiry date. Regardless of the agreement-making process chosen by the employer, the ensuing greenfields arrangement must pass the proposed no-disadvantage test. Support. 16.1 The Australian Government should amend the Fair Work Act 2009 (Cth) so that the flexibility term in a modern award or enterprise agreement can permit written notice of termination of an individual flexibility arrangement by either party to be a maximum of 1 year. The Act should specify that the default termination notice period should be 13 weeks, but in the negotiation of an agreement, employers and employees could agree to extend this up to the new maximum. Support. 16.2 The Australian Government should amend the Fair Work Act 2009 (Cth) to introduce a new test’ (NDT) to replace the better off overall test for assessment of individual flexibility arrangements. The guidance in implementing the new NDT should also extend to collective agreements (as recommended in draft recommendation 15.4). To encourage compliance the Fair Work Ombudsman should: • provide more detailed guidance for employees and employers on the characteristics of an individual flexibility arrangement that satisfies the new NDT, including template arrangements Support.