Employer groups have expressed unanimity in much of their criticism of the Fair Work Act in submissions to the current Fair Work Act Review.

 

The Australian Industry Group argued that while some parts of the Fair Work Act are working effectively, many are not.

 

“There is much common ground between the major industry groups on key problem areas and a shared view that the FW Act is hampering productivity growth,  workplace flexibility and competitiveness.”

 

“Moreover, the Fair Work bargaining laws are less flexible and unions have much more power in the bargaining process than the laws implemented in 1993/94 when enterprise bargaining was first introduced into the federal workplace relations legislation. For example, nowadays unions can bargain and take industrial action over a much wider set of claims and agreement scope is no longer simply a matter to be bargained over; the scope for bargaining can now be imposed by Fair Work Australia (FWA). This is very inappropriate when Australian companies have never faced such fierce competition and cost pressures.”

 

The AIGroup proposed a suite of changes to the Act, amongst which were:

 

  •  a tightening up to terms of enterprise agreements , including expanding the list of ‘unlawful terms’ to include terms which impose restrictions on outsourcing, contractors or on-hire arrangements;
  •  reintroduction of a voluntary bargaining system, as was in operation 1993/94 and 2009;
  •  If the Act is to continue to require that an employer bargain where the majority of employees want an enterprise agreement, then secret ballots should be required to determine majority support, both employer and employee bargaining representatives should be permitted to apply for a determination, and employers should be permitted to re-test the support of the employees for a collective agreement after protracted bargaining;
  • scope orders should be abolished so that the scope of an enterprise agreement is a matter to be bargained over, not a matter to be imposed on the bargaining parties;
  • enterprise agreements between an employer and an individual employee should be allowed;
  • greenfields agreements should be allowed between an employer and any union eligible to represent any employees on the project; employer greenfields agreements should also be reintroduced;
  • the framework for the making of Individual Flexibility Arrangements (IFAs) under enterprise agreements and modern awards should be set out in the Act so that individual employees have access to flexible work arrangements that suit their needs, by agreement with their employer;
  • implementation of an appropriate national standard for long service leave. That standard should be the federal award standard of 13 weeks’ leave after 15 years of service with pro rata leave available after 10 years; the national standard must override State and Territory long service leave laws and enterprise agreements need to be able to override State and Territory laws; and
  • changes to the annual leave and personal/carer’s leave provisions of the National Employment Standards to address problems and to enable employers to more effectively deal with absenteeism.

 

The Australian Chamber of Commerce and Industry  (ACCI) highlighted some aspects of the national employment standards (NES) that it believes need amendment.

 

“The NES on annual leave, as now being interpreted, wrongly forces employers to generally pay annual leave loading on termination pay even if awards and agreements say the contrary and even if tribunals have decided the contrary.  The small business exemption from redundancy obligations under the NES needs to be amended to ensure that awards do not undermine the exemption. NES provisions dealing with leave require greater flexibility, including the rights to negotiate the cashing out of part of accrued balances.

 

ACCI also called for a more robust phase of award review on an industry-by-industry basis.  Further, "a merit-based review of penalty rates and loadings in service industries should be conducted on an industry-by-industry basis, and scope should exist for incorporating such payments into base rates of pay on an enterprise basis, within the framework of a no disadvantage test".

 

Unfair dismissals was also an area of concern for employer groups. ACCI argued that consideration should be given to reintroducing a full exemption for small to medium sized firms and for employees who work for such firms from having access to the unfair dismissal system. The exemption should apply to “micro, small and medium sized firms who have less capacities and resources than larger firms to have dedicated HR personnel, training and policies.”

 

The Fiar Work Act Review is being conducted by a panel comprising  Reserve Bank Board Member Dr John Edwards, former Federal Court Judge, the Honourable Michael Moore and legal and workplace relations academic Professor Emeritus Ron McCallum AO.

 

Written submissions to the Fair Work Act Review closed on February 17, and the review is to report to the Minister for Employment and Workplace Relations by 31 May 2012.

 

More information about, and submissions to, the review are here.