docs.employment.gov.au€¦ · Web viewTherefore it is not possible to draw any conclusions as to whether the use of an IFA contributes to improved productivity, participation and

Submission to the

Fair Work Act Review PanelFebruary 2012

A Circuit Breaker for the

Small Workplace

Contact: Peter StrongExecutive [email protected] of Small Business of AustraliaGPO Box 1196Canberra ACT 26010433 644 097

COSBOA Submission to the Review of the Fair Work Act – February 2012

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.

Submission to the Fair Work Act Review PanelFrom the Council of Small Business of Australia

By email to: [email protected]

The Council of Small Business Organisations of Australia (COSBOA) appreciates the opportunity to provide a submission to this review of the Fair Work Act.

We have responded to this review from two different approaches. We have included at Attachment 2 a traditional response to the actual act seeking changes and making comments on its applicability in the small business workplace (SBW).

We have also provided a submission, Attachment 1, based on changing the approach to workplace relations for small businesses. We believe that for too long industrial relations systems have focused solely on the needs and demands of policy makers in government, on the power of big business and the philosophical needs of union leaders. It is time to focus on the majority – the millions of people to be found in the hundreds of thousands of small workplaces throughout Australia.

Both our responses are based on the facts that:

The current system and all previous industrial relations and workplace relations systems have been designed for experts such as CEOs, boards of directors, pay clerks, accountants, legal practitioners and union representatives who are based in the larger 10% of businesses. We need a system for the small workplace.

The small workplace is inherently different from the larger workplaces.

The small workplace makes up almost 96% of workplaces in Australia. Over 60% of workplaces employ less than 5 people. Less than 4% of all businesses, employing and non employing, are medium to large.

The small business workplace includes over half of the workers in Australia. The latest figures show that over 4.8 million employees exist in the SBW. There are over 800,000 SBWs in Australia. There are over 1 million other people in the SBW who are not classified as workers but who earn their income from the business. Another 1.2 million people earn their living through their own efforts but do not employ other people. The small workplace accounts for the livelihood of over 7 million people.

Over 85% of employing small businesses are to be found in the services sector.

Small businesses are the economic and employment backbone of the economy.

Over the last two decades the world of small business has become much more dynamic and the world of employment has also changed. Many more people now move from jobs to owning their own business and employing other people and then back into a traditional job. Some people are employees on one day and employers on another day. The small workplace has grown in numbers and has become more dynamic.

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mailto:[email protected]


The small workplace will consist of a group of people all earning a living. The owner of the business and the employees will all earn income from the business. These people interact as team members where roles and expectations of each person is, or should be, understood. There is no remote CEO or board of directors making decisions and influencing the business. In this situation no one person should be asked to do what they cannot reasonably achieve.

Governments have traditionally focused their legal efforts on supporting the worker. In the small workplace there may only be two people the ‘employee’ and the ‘employer’. The employee only needs to complain to cause the employer to prove that their side of a story is the correct version or the employer will be fined or forced to re employ another person. The system assumes that the owner of a small business is an expert on all things when that is obviously not possible. The system does not allow for an employer to be a human being with their own responsibilities – and rights.

The bodies responsible for developing WP regulations and monitoring those regulations, currently FWA and the FWO, do not keep any statistics that allow for proper analysis of the difference between large and small employers, the issues they have and the way issues are resolved. We need to know exactly how many small businesses have been fined and why (and logically it will be the majority but exactly how many is needed). We also need to know: which sectors those small businesses are to be found; which jurisdictions and regions; how long have those businesses been in operation; how many are run by new arrivals into Australia; and the list goes on. We can only make informed comment and develop informed policy with good information.

At attachment 1 is our response seeking a system that is focused on the small workplace and the realities that are found when a group of people are working together in that environment.

At attachment 2 is our traditional response to reviews of industrial legislation.

Yours Sincerely

Peter Strong

Executive DirectorCouncil of Small Businesses Organisations of Australia

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Attachment 1

A Workplace Relations System for the Small Workplace

In the small workplace we need a system that is not based on philosophy and vested interests - we need a system that is based on reality and people.

Work Choices and Fair Work are and were systems based on outmoded beliefs about the way the workplace should operate and behave. One system was designed by big business to suit their belief in what a workplace should look like and the other system is in many ways designed by the Australian union movement and big business associations to reflect their needs.

In the end these systems, their development and implementation (and their eventual dismantling and reconstruction into other systems) has failed everyone except the vested interests.

We propose that we accept the reality of our working world and we have two systems. One for big business and one for small business.

Large Workplace SystemThe big business system will involve unions, legal experts, big business associations and government agencies and departments. They can have a workplace relations system that requires legal interference and court cases, various agreements, complications at all levels, negotiations, ambit claims, ‘game’ playing, registrars, threats, strikes, lock outs, political intrigue, go slows, regular award restructuring, industry superfunds, compliance by everyone, corporate and union machinations as well as true and false accusations. The Commissioners for this system will be appointed with a rotation of three years so that no certainty will ever be obtained and all participants will regularly justify their existence and their pay by having to fight or support the current commissioners. The people involved in this system can design and redesign the process and argue and debate and change and modify to their hearts and wallets content. Basically this is a continuation of the workplace relations system of the last hundred years.

Small Workplace SystemThe small workplace is different from the world of big business. There isn't that much conflict and not as many problems in the world of small business. This world consists of real people working together trying to earn some money through effort. It is more often than not a simple world where people work closely together, they respect each other, are tolerant of normal human behaviours and rarely need government or union interference. It is a world without paymasters or award experts. It is a world

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where family and free time is valued and the participants, the employer and the employees, seem to know what the rules are because those rules are to be found in every day life. These rules are built around respect of people, working hard, forgiving minor indiscretions, telling the truth, tolerance, communicating as often as possible, not asking for the impossible, support for each other in times of stress, accepting of reality and enjoying or putting up with what is happening.

The reality is that the world of the smaller workplace is never as bad as is made out. Last year there were around 26,000 employers fined in some way or another. That is less than 1% of employers. Last year there were less than 20,000 unfair dismissal claims made by disgruntled employees. That is a small percentage of people, and in the end we are not sure whether the dismissals were truly unfair as only one side, the employee, gets support and assistance. One side has to prove the facts (the employer) the other side doesn't (the employee). And it is such a small number - why do we spend hundreds of millions of dollars on such a few issues that may or may nor be true?

We will still need support for those that are vulnerable and that support must be obvious and easily available. The support needs to be for both employers and employees. The majority of those that feel vulnerable will be employees because there are more of them. Employers can, and do, feel vulnerable. If a woman of slight build needs to confront a much larger man about theft in the workplace then she may feel vulnerable, very vulnerable. If a pregnant woman is dismissed for being pregnant, no matter what ‘excuse’ is used, that is also an appalling event that must be addressed. Is having a complicated system that assumes blame will always rest with the employer, unless positive proof can be produced, the best way of managing a small number of bad situations?

A potentially simple solution is to have a help line that is available for both the employer and employee and that is about providing information on wage levels and on managing conflict and situations that are wrong. This help line would treat both employers and employees as equal in human rights, this system will provide real support and information. At the moment the FWO has a help line for employees that is focused and well resourced. There is an information line for employers that starts with a threat to use any information they gain against the business and finishes by stating that the information that is provided might be wrong and the employer will need to contact a legal person if they want the facts (and no lawyer can actually guarantee facts on wages).

Any help line or any information for employees and the employer must give the same information to both these people. Currently it cannot be guaranteed that the information will be the same and this has the potential to create unnecessary conflict. It cannot and should not be this hard for the small workplace.

Under our draft proposal, for people who work in a small business, any dispute that cannot be resolved in the workplace and escalates will be settled by one person from the new FWO who considers the facts and makes a decision. That FWO is tasked with considering the needs of both the employer and the employee, communicating effectively and giving all individuals involved the same rights. Any decision is based on a simple set of rules and pay rates. The system is designed for people not for experts. There should be no assumption made on who is right or wrong until facts can be determined from both sides of the arguments.

The rules of the small business workplace will be based on human rights, the reality of the workplace and parts of the National Employment Standards.

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Unfair dismissal will relate to issues such as discrimination, pregnancy and the like, issues already embedded in legislation.

When it comes to clashes in the workplace then if the dispute resolution process cannot work out the problem then issues such as accusations of theft etc will be dealt in a civil court and will not be supported through further intervention by government. This reflects the fact that in the small workplace for many of these cases it is one person's opinion against another person's opinion. When an individual catches a person stealing they should have the right to remove that person from the workplace. If, on the rare occasions, the accusation is false then this should be managed by the people involved not by a third party from the industrial relations system.

There is also the fact that managing personality clashes should not be something that government agencies attempt. In the end if a personality clash is so bad then one party will leave the relationship. It is a fact that the employer cannot leave the business, that fact cannot be resolved by systemic rules or by punishing one party or rewarding another – it is a part of everyone’s life and should not be confused with discriminatory or dishonest behaviour.

Our proposed system is an improvement on the current system where the force of government is behind one individual, the employee, but ignores the rights of the other individual, the employer. Our system reflects real life, real relationships and the fact that the great majority of people resolve their issues one way or the other.

If two people are working together and one is the employer and one is the employee the situation will be judged on the fact that it is two individuals. They both have roles and responsibilities. One earns a wage completing tasks for the other person. They both focus on a task. Any disputes are nearly always sorted. So let's have a simple system that is fair, less complicated than the system for big business and reflects reality.

This system will work, more than 99% of people will be satisfied. And big business, the unions, and other stakeholders who would rather have philosophy than reality can enjoy their moments in the sun in the "big business" system without hurting anyone but themselves.

Let's have a workplace relations system that reflects the needs of all the people in a small workplace, not of the institutions who sit above those people. We need a system that reflects reality not philosophy.

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An Award for the Small Business WorkplaceThe Small Business Workplace Award (SBWA) is aimed at workplaces that do not have a dedicated pay clerk or have to pay an outside organisation or person to do the pay run and manage workplace conditions. A business owner can elect to be part of the SBWA or part of an industry based award. Once the decision is made a change can only occur with approval of the new FWO.

The key features of the SBWA:

Targeted at businesses that employ less than 20 FTE employees

Language that is easy for anyone in the workplace to understand

Information and support equally targeted at the employer and the employee

Dispute resolution based on equal rights for all in the workplace

Responsibilities and rights easy to understand

The information can be guaranteed to be correct

The SBWA to consist of:

Pay rates that have no more than two levels

Junior by ageAdult with a base level pay rate

The same pay rates will apply to any business that elects to be part of the SBWA no matter what industry

Conditions that will be easy to understand and be consistent across all small businesses and have consideration of the needs of all people in the small workplace. The conditions will be based on the National Employment Standards.

Maximum weekly hours of work

Requests for flexible working arrangements

Parental leave and related entitlements

Annual leave

Personal/carer’s leave and compassionate leave

Long service leave

Public holidays

Notice of termination and redundancy pay

On-line access to a Fair Work Information Statement.

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The penalty rates need to reflect small business and be no more than 1.5 times normal rates. This is recognant of the fact that more and more small business people are either closing their businesses on Sundays and public holidays or are being forced to work extra time, to the detriment of their health.

The issue of community service is problematic for small business only because of the small number of employees in a workplace creating management problems if one employee is constantly away from the workplace. Most people in the small workplace work this out in positive ways and most community organisations attempt to work with the owners of small businesses to develop ways for their employees to work in volunteer roles.

The local and national employment marketplace will help decide what wages are paid above the base pay rate for small business.

Risks

Some larger businesses will deliberately down size or restructure to take advantage of a simpler system. This can be managed through the Big Business Workplace System (BBWS). When a business opts to leave the BBWS they will need to show why.

Managing businesses “On the Cusp”

There are potential issues around businesses that are close to the employment limit to be classified as eligible for the SBWA.

The reality is that the great majority of businesses are not close to the cusp, over 60% employ less than 10 people. Those that are in or near the cusp will be found in businesses affected by seasonal factors such as tourism, harvesters, hospitality, some areas of retail and financial services.

Businesses who are growing will normally continue to do so and move into the area of medium business and will have a pay clerk employed to manage the change process. These businesses will then be included in the BBWS.

Businesses that hover around the cusp should be allowed to average staff numbers over 3 years. Once a business exceeds the limit for more than 3 years they will be required to move onto a suitable BBWS award or an EBA. This gives time for the business owner and the employees to understand EBAs and the process involved in developing a suitable agreement.

Business can also be allowed to average staff numbers over 12 months. If employee levels are below the limit for 8 months of the year they can still be deemed as a small business for SBWA purposes.

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Attachment 2

COSBOA

Submission to the

Fair Work Act Review PanelFebruary 2012

Attachment 2 - Table of ContentsAttachment 2 - Table of Contents................................................................................................................1

Terms of reference.............................................................................................................................................3

Normative perspectives..............................................................................................................................3

Special circumstances of small business.....................................................................................................3

What are the special circumstances?.........................................................................................................4

Special circumstances currently recognised in the legislation....................................................................4

Use of Evidence by the Review...................................................................................................................4

Genuine unfair dismissal protection...................................................................................................................5

Issues..........................................................................................................................................................5

Evidence.....................................................................................................................................................6

Improvement..............................................................................................................................................9

General Protections of Employees...................................................................................................................11

Issues........................................................................................................................................................11

Evidence...................................................................................................................................................11

Improvements..........................................................................................................................................11

Individual Flexibility Arrangements..................................................................................................................11

Issue..........................................................................................................................................................11

Evidence...................................................................................................................................................12

Improvement............................................................................................................................................13

Transfer of business.........................................................................................................................................13

Issues........................................................................................................................................................13

Evidence...................................................................................................................................................14

Improvement............................................................................................................................................15

Enterprise Bargaining.......................................................................................................................................15

Issues........................................................................................................................................................15

Evidence...................................................................................................................................................16

Improvement............................................................................................................................................16

Modern award transition.................................................................................................................................16

Issues........................................................................................................................................................16

Evidence...................................................................................................................................................16

Improvement............................................................................................................................................17

Further assistance............................................................................................................................................17

References........................................................................................................................................................18

General.....................................................................................................................................................18

Legislation.................................................................................................................................................18

List of cases cited......................................................................................................................................18

Websites...................................................................................................................................................18

Attachment 2 page number 2

Terms of referenceWe note that the review will examine and report on:

1. The extent to which the Fair Work legislation is operating as intended including: the creation of a clear and stable framework of rights and obligations which is simple and

straightforward to understand; the emphasis on enterprise-level collective bargaining underpinned by simple good faith

bargaining obligations and related powers of Fair Work Australia; the promotion of fairness and representation at work; effective procedures to resolve grievances and disputes; genuine unfair dismissal protection; the creation of a new institutional framework and a single and accessible compliance regime; and any differential impacts across regions, industries occupations and groups of workers including

(but not limited to) women, young workers and people from non-English speaking backgrounds; 2. Areas where the evidence indicates that the operation of the Fair Work legislation could be improved

consistent with the objects of the legislation.

Normative perspectives The preface to the Terms of Reference of this Review states:

“The Fair Work Act 2009 (Fair Work Act) and the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 (together, the Fair Work legislation) gave effect to the Government’s commitment to restore fairness to the Australian workplace relations system.”

This seems to suggest that the Review should commence its deliberations from the view of the Australian Government that the legislation has operated to a standard of ‘fairness’ consistent with its own normative perspective. Fairness is an elusive concept and in the field of business and employment largely depends on the perspective of the particular employer, employee or administrator.

COSBOA believe that the Review should not accept this statement as self evident but should carefully weigh the evidence of submissions as to whether the Government’s assertion bares any objective relationship to the reality of the experience of Australian small business. We also would encourage the Review to independently analyse research data on the operation of the legislation and where there are gaps in reliable data, recommend further research to address the questions in the terms of reference.

Special circumstances of small businessThe first term of reference asks the Review to consider:

“The extent to which the legislation is operating as intended …”

This requires an analysis of what was actually intended in the objectives of the legislation. Sub-clause 3 (g) in the Objects of the Act in respect of small and medium sized businesses stands alone having been recognised as different and warranting special consideration.

“The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promote national economic prosperity and social inclusion for all Australians by:

... (g) acknowledging the special circumstances of small and medium sized businesses”

The key phrases in that Objective are: “balanced framework for cooperative and productive workplace relations” and “special circumstances”.


The theme of the COSBOA submission is unapologetically an analysis of the operation of the legislation from the perspective of small business employers.

We submit that the ‘special circumstances’ of the small business employer are critically important to the question of whether the framework of employment regulation is ‘balanced’ and which provides ‘cooperative’ and ‘productive’ workplace relationships in small business employer. The special circumstances of small business employer requires a distinct or special examination of the extent to which the legislation is operating as intended in respect of small business employer and in the consideration of areas where evidence indicates that the operation of Fair Work legislation could be improved for small business employer.

What are the special circumstances?

1. They operate in highly competitive markets for their goods and services e.g.

a. . profit margins are relatively smaller

b. Price sensitive demand for goods and services

2. Relatively inflexible costs of production.

a. Limited or no capacity to negotiate lower supplier charges and fees

3. Innovation and flexibility are drivers of growth and profitability

4.

Special circumstances currently recognised in the legislationCOSBOA acknowledges that the legislation does recognise in some respects the special circumstances of small businesses in so far as there are important exemptions and distinctions made in

a. The period in which a person must be employed by a small business employer to be eligible to pursue an application for an unfair dismissal remedy

b. The obligation to pay redundancy prescribed in the National Employment Standards

However, as you will note through the text of the submission, the legislation does not sufficiently recognise the special circumstances of small and medium sized businesses and therefore could be improved.

Use of Evidence by the ReviewWe offer this general comment on the question of evidence and its use by the Review as we believe this is an important issue impacting on the capacity of the Review to successfully perform its work.

COSBOA has endeavoured to provide qualitative and quantitative evidence to support its contentions where such evidence was available. However, we believe that there are substantial gaps in qualitative and quantitative data on the operation of the legislation that make the task of the Review difficult particularly in the more contentious parts of the legislation. For example to illustrate the point, we know that in 2010-2011 Fair Work Australia received 14,897 terminations of employment applications and 76% of applications in that period were settled at conciliation.1 However, the data does not reveal:

The primary motivations for applications e.g. compensation or reinstatement

the merits of the applications that were settled,

the reasons that parties settled,

the average or median payments made to applicants at settlement and

the cost to employers in responding to the applications including legal advice and representation

1 2010-11 Annual Report, Fair Work Australia page 13Attachment 2 page number 4

The Annual and Quarterly Reports of Fair Work Australia provide basic data on the processing of applications. The fact that 76% of applications are settled at conciliation does not inform us of anything more than that they were settled. Consequently, the Review will have difficulty in drawing any solid conclusion on terms of reference as to whether the legislation provides ‘genuine’ unfair dismissal protection unless it addresses the questions cited above.

Further, the answers to these questions are important because they are all matters that bear on the question of productivity, cooperative working relationships, fairness and the issue of whether the legislation provides a framework that balances the needs of business and employees. We believe there is a substantial need for institutions of the Government to improve its research and reporting.

This is an important area that COSBOA believes should form part of the Review’s deliberation and report to Government.

Genuine unfair dismissal protection

IssuesSection 381(2) of the Act states

“The procedures and remedies … and the manner of deciding on and working out such remedies, are intended to ensure that a ‘fair go all round’ is accorded to the employer and employee concerned.”

COSBOA does not believe that the procedures and remedies ensure a ‘fair go all round’ and must be substantially improved to ensure a fair go to small and medium sized businesses.

The issues are:

1. Small business employers are unable to manage employee work performance and behavioural issues with certainty. The uncertainty unreasonably constrains the employer’s capacity to respond swiftly to improve business performance.

a. COSBOA contends that the uncertainty is partly due to the imprecise weight given to the criteria applied to whether a dismissal was harsh, unjust or unreasonable and the broad discretion afforded to Fair Work Australia to determine such.

b. The lack of clear direction on the application of the Small Business Fair Dismissal Code by Fair Work Australia also contributes to the lack of certainty. (see also comments in point 3 below)

2. The financial burden of responding to applications is a disincentive to defending the decision to dismiss.

3. There is a disjoint between the Small Business Fair Dismissal Code ‘deeming’ provision in respect of summary dismissal and the statutory definition of an unfair dismissal. It is unclear that compliance with the Code necessarily ‘deems’ a dismissal to be fair and therefore disqualify an application for an unfair dismissal remedy. The use of the phrase ‘... not consistent with the Small Business Fair Dismissal Code’ in section 385(c) of the Fair Work Act to partly define unfair dismissal is imprecise and as such is not applied in a manner that achieves the object of the Small Business Fair Dismissal Code 2.

4. Small business is defined too narrowly and inconsistently.

5. A ‘Fair go all round’ is defined in the Act by reference to the decision of Sheldon J in Loty and Holloway v Australian Workers Union [1971] AR (NSW) 95. The determination of the validity of the reason for dismissal by hearing the evidence ‘afresh’ does not provide in our view, a ‘fair go all round.’

2 Small Business Fair Dismissal Code Fair Work Act 2009 Declaration under sub-section 388(1) 24 June 2009Attachment 2 page number 5

6. Insufficient attention is paid to the appointment of persons with skills, knowledge and experience in business, industry and commerce

7. The entitlement to claim unfair dismissal inhibits employment growth in that:

a. Compliance requirements for dismissal are costly and inhibit decisions to employ unskilled, unqualified or inexperienced persons.

b. An artificially low definition of small business employer inhibits employers from employing fifteen or more persons

Evidence

1. Deciding harsh unjust and unreasonable.

a. It is a self evident fact that Section 387 of the Fair Work Act does not require Fair Work Australia to apportion weightings to the criteria that Fair Work Australia must apply in determining whether a dismissal was harsh unjust or unreasonable. For example, there can be a determination that the dismissal was harsh, unjust or unreasonable even where a valid reason for dismissal has been found and the validity of the reasons for dismissal may be weighted equally with the criteria that the dismissed employee was notified of the reason.

b. A scan of Fair Work Australia Full Bench decisions over the period 1 July 2009 – 31 December 2011 do not reveal any direction to single members on how they must weigh the criteria or exercise the discretion pursuant to section 387(h).3

c. A further key word search of decisions over the same period does not show any reliable pattern of weightings applied by Fair Work Australia to the task.4

d. Section 387(h) of the Act provides a broad discretion for Fair Work Australia to take into account any matter it (in any particular case) believes relevant.5

e. See also the Full Bench decision on the matter Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166. This case is summarised also in the Fair Work Australia Annual Report of 2010-20116

2. The introduction of teleconferences for conciliation has resulted in savings in the cost to small business for attendance with representation at the relevant tribunal. However, initial costs of advice and preparation of the form F3 - Employer Response for claims that may have little or no prospect of success is a financial burden borne by small business employers

a. The average cost to obtain advice and representation to respond to an application for an unfair dismissal remedy not available from any of the data published by Fair Work Australia. However, it is not unheard of that an employer would incur between $2000 and $6000 in legal costs and time away from work in responding to unfair dismissal applications up to and including conciliation.

3 For example, the Full Bench had an opportunity to do so in Siriwardana Dissanayake v Busways Blacktown Pty Ltd [2011] FWAFB 6487 but did not do so. It’s consideration of the grounds of appeal re-affirmed the high level of discretion afforded Members in determining the merits of an unfair dismissal application.

4 A Key word search was conducted using the Fair Work Australia search engine. The category of ‘Termination of employment,’ combined key phrases of ‘unfair dismissal’(4 results) and ‘merit’ 32 results)

5 The 36 cases cited in footnote 4 found under the key word ‘merit’ and ‘unfair dismissal’ illustrate the point that Fair Work Australia exercises a broad discretion in the approach to the criteria that determines whether a dismissal has been harsh unjust or unreasonable and that such discretion leads to unpredictable results.

6 Fair Work Australia Annual Report 2010-2011 p28Attachment 2 page number 6

b. Figures quoted in a Senate Employment, Workplace Relations and Education Committee Report of 2005 estimated the cost to an employer in the Restaurant and Catering industry to defend a claim at that time to be an average of 63 hours of their time and $3675 in legal costs. The Government Senators estimated that this translated into $18.2 million in direct costs and $15.5 million in indirect costs to the industry as a whole 7

c. The cost of defending a claim often exceeds the cost of paying out an employee that threatened to file an application, leading to the practice of paying what has become known as “go away” money.8

3. Defining a small business

a. The Object of the Act acknowledges the special circumstances of small and medium sized businesses. However, there is a disjoint with current definition of small business in the Fair Work Act. According to the Australian Bureau of Statistics in 20019 a small business is defined as employing less than 20 employees and a medium sized business employing between 20 and 199 employees10. There is no apparent reason in the Act to deviate from the ABS definition.

b. An employer that employs 14 full-time persons will be defined as a small business whereas an employer that employs 15 persons either in part-time or a combination of part-time and full-time will not be defined as such. It is self evident that it is inequitable that the two employers should be treated differently.

4. Fair Work Australia members hearing unfair dismissal applications are not required to take into account the business context of the decision to dismiss. Safety and welfare of other employees is expressly provided in section 387(a) of the Act but harm to business performance is not.

a. A random sample of cases over the period 1 July 2009 – 31 December 2011 do not reveal any pattern of clear and explicit consideration of the business context when weighting the merits of an unfair dismissal application.11

b. However, one decision of Senior Deputy President Richards published 30 January 2012 does illustrate an explicit reference to the business environment in his consideration of the merits of the application.12 This case illustrates how rarely the business context is taken into account but does illustrate how Fair Work Australia should consider the actual or potential impact of unsatisfactory performance or conduct has on a business.

5. The Act requires that those appointed to Fair Work Australia have appropriate knowledge or experience in relevant fields such as workplace relations; law; business, industry or commerce.13

a. Fair Work Australia members hearing unfair dismissal applications are often lacking in understanding of the nature of the business or industry in which the person was employed and

7 The Senate, Employment, Workplace Relations and Education References Committee Unfair Dismissal and Small Business Employment Report June 2005, p35

8 Australian Chamber of Commerce and Industry (ACCI) “Unfair dismissal law – doing more harm than good” Press Release, August 2005 cited in Explanatory Memorandum Fair Work Bill 2008 page xlvi

9 Australian Bureau of Statistics 1321.0 - Small Business in Australia, 2001

10 Ibid, Summary

11 The random sample was drawn from a key word search of the Fair Work Australia decisions search engine. The key phrases applied were: ‘business context’; ‘business environment’; business needs’. The phrase ‘unfair dismissal’ was then applied to an Advanced Search i.e. within the results displayed for the original key words.

12 Ms Angelina Akee & Others v Townsville Aboriginal & Islander Health Service Ltd [2012] FWA 736

13 Section 627 Fair Work Act 2009Attachment 2 page number 7

therefore in our submission, less capable of understanding the reasons for dismissal within the proper business context. This is not to suggest that individual Members must have owned or operated a small to medium enterprise to appreciate the personal and financial commitment and risk to the success of business.

b. The point is that the biography of the Members of Fair Work Australia reveals the majority of Members career experience being that of lawyers, union officials and employer advocates. Such career experience is important and is in our submission not to be undervalued. Nevertheless, the absence of people with direct business experience or at least a requirement for Members to undergo some structured exposure to the fundamentals of owning and operating small business is evidence of a significant area that must be improved in the legislation.

6. The consideration of the merits of an application for an unfair dismissal remedy by hearing the evidence ‘afresh’ is neither a fair or efficient method of determining the validity of a decision to dismiss an employee.

a. It is extremely difficult (and often intimidating) for a small business employer to effectively convey or reconstruct to a tribunal the various events and considerations that may have been taken into account when deciding to dismiss an employee.

b. Such a method of enquiry provides the opportunity for aggrieved employees to reconstruct their conduct or performance in a more favourable light and provide information not necessarily relevant or known at the time of dismissal.

c. Cross-examination of applicants does provide a means to challenge the applicant’s evidence. However, this method requires skilled and experienced lawyers or advocates performing such work.

d. The average small business does not have the financial means to engage a lawyer and is therefore persuaded to settle claims against it rather than challenge the merits in arbitration. This is a fact that is supported by testimony of small business employers, advocates and union officials representing parties to such disputes. The Review may verify the evidence by a simple survey or interview of advocates that work in the national system.

7. The aim of certainty and mitigation of claims against small business employers as described as an objective in the Regulatory Impact section of the Explanatory Memorandum to the Bill14 is not being achieved for reasons that are evidenced as follows:

a. The Small Business Fair Dismissal Code refers to summary dismissal for misconduct as being ‘deemed’ to be fair. However, this has no equivalent provision in section 385 of the Act and therefore its relationship to the criteria defining an unfair dismissal in section 385(c) is tenuously indirect and its enforceability under the Act is questionable.

b. A random sample of cases heard by Fair Work Australia over the period 1 July 2009 – 31 December 2011 shows that Fair Work Australia is not ‘deeming’ dismissals of small business employees to be fair and therefore not unfair in accordance with section 385 of the Act. 15

8. Initial matters to be considered before merits

14 “r.225. Small businesses tend not to have the resources to employ dedicated human resources professionals to help them manage dismissals. By providing a clear process and guidance to follow when dismissing an employee, the Code may help to mitigate any increase in unfair dismissal claims from small business employees, and provide certainty to small business when they need to dismiss an employee.” Explanatory Memorandum Fair Work Bill 2008 page xlvii

15 The random sample was selected by category and key word search using the Fair Work Australia search engine. Category was ‘Termination of employment,’ and key word was ‘Small Business Fair Dismissal Code’


a. The Full Bench of Fair Work Australia has acknowledged that the issue of compliance with the Small Business Fair Dismissal Code should be dealt with by Members hearing applications prior to the consideration of other matters16:

“We add, however, that because of s.385 and s.396 of the Act, whether a dismissal is consistent with the Code should be dealt with as a preliminary matter that should be determined prior to the consideration of whether the dismissal was unfair. In this case, the fact that the issue of compliance with the Code was dealt with as part of the overall merit has not resulted in error, however, it is generally appropriate to deal with any relevant preliminary matters before moving to determine the merit and related matters.”

b. Individual Members continue to address the issue contemporaneously with the merits of the application. A random sample of cases heard by Fair Work Australia over the period 1 July 2009 – 31 December 2011 shows an inconsistency in Fair Work Australia’s approach to the task required under section 396 of the Act.17 In particular,

i. Hearing of evidence on merit prior to deciding the threshold matters required under section 396 of the Act

ii. Failure to enquire into the question of consistency with the Small Business Fair Dismissal Code unless the parties submit evidence of such

9. The Government Senators Report of the Employment, Workplace Relations and Education References Committee in 2005, accepted the evidence presented to the enquiry that unfair dismissal laws were a barrier to employment.

“This new evidence demonstrates that current unfair dismissal laws are a barrier to employment and that the cost to small business in defending unfair dismissal claims is disproportionately high.”18

10. The Government Senators also accepted evidence presented to the Committee that the erosion of small business confidence resulting from the unfair dismissal laws is related directly to the ability or willingness of employers to dismiss staff.19

ImprovementIt is the primary position of COSBOA that Part 3-2 of the Act relating to unfair dismissals should not apply to small business employers. The exclusion of small business employers from the operation of this part of the Act is a reasonable approach to recognise the special circumstances of small business employers and improve employment opportunities and promote innovation and flexibility which are the drivers of productivity.

However, in the alternative if the Review were not to accept this primary submission, it is our view that the Review should recommend to the Minister:

1. Amendment to section 23 of the Act to define a small business employer as one that employs less than 20 full-time equivalent employees.

2. Compliance with the Small Business Fair Dismissal Code as a complete defence to an application for an unfair dismissal remedy should be made explicit in the Fair Work Act in section 385 i.e. the following provision should be inserted into section 385(c):

16 Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, paragraph 34

17 The random sample was selected by category and key word search using the Fair Work Australia search engine. Category was ‘Termination of employment,’ and key words were ‘Small Business Fair Dismissal Code’.

18 The Senate, Employment, Workplace Relations and Education References Committee June 2005, op cit p35

19 Ibid p34Attachment 2 page number 9

i. For the avoidance of doubt, compliance with the Small Business Fair Dismissal Code occurs when, and it is deemed not unfair, for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal.

ii. Serious misconduct of a nature referred to in sub-clause (i) includes but is not limited to theft, fraud, violence, intoxication, refusal to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment and serious breaches of workplace health and safety procedures.

3. Amend Section 396 of the Act to make it clear that the initial matters relating to the application must be decided prior to the hearing of evidence on the merits i.e. the matters must be addressed prior to a consideration of whether the dismissal was harsh, unjust or unreasonable. Further, , the initial matters should be considered at or immediately prior to conciliation unless either party to an application objects.

4. Amend Section 396(c) of the Act to require Fair Work Australia to apply the approach adopted by DP Bartels in the Banana Tree Cafe case.20 In that case, Deputy President Bartels stated that the determination of whether the dismissal was consistent with the Small Business Fair Dismissal Code is

“... to be based on the knowledge available to the employer at the time of the dismissal, and ... an assessment of the reasonableness of the steps taken by the employer to gather relevant information on which the decision to dismiss was based.”21

5. Section 387 of the Act to be amended to state that where there is a valid reason for the dismissal related to the person’s capacity or conduct the dismissal would not be unfair. That is to say, the validity of the reason for dismissal based on the person’s capacity or conduct is weighed as conclusive of the consideration of the merit of the application where it has determined that it was a well founded belief or conclusion on the basis of the information available at the time. All other criteria would be disregarded.

6. Further, the determination of the validity of the reason in all unfair dismissal applications would be decided by reference to whether the reasons for dismissal were based on facts that were reasonably apparent or open to the employer at the time of dismissal i.e. the approach that was adopted by DP Bartels should be applied to the determination of validity disregarding whether the employer is a small business.

7. The burden of proof in the arbitration of an application should continue to be the ‘Balance of probabilities’

8. The onus of proof should be upon the applicant in all instances including where the dismissal was for reasons of serious misconduct.

General Protections of Employees

Issues1. General Protection disputes are potentially costly and difficult to defend. The two primary areas that

are problems for small business employers are the reverse onus of proof and the overlap with other Commonwealth and State human rights legislation.

2. Claims of adverse action also provide opportunities for defensive counter claims by employees that may be unwilling or incapable of responding responsibly to normal supervision and performance

20 Narong Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Cafe [2010] FWA 7891

21 Ibid paragraph 60Attachment 2 page number 10

management. Accusations of discrimination have enormous potential to damage the good name and reputation of small business employers. The lack of an obligation on applicants for a remedy to demonstrate a prima facie case for the matter to proceed encourages false and malicious accusations.

Evidence

1. Small business employers have to understand and comply with multiple layers of laws covering the same subjects. The legislation is imposing additional and unnecessary costs. There are substantial numbers of witness accounts that can testify to the propositions above.

2. There is a gap in applied research to validate the witness testimony. Nevertheless, the Review should not discount the direct witness evidence that it may readily acquire to support the submission on this matter.

3. Evidence in respect of the cost of responding and defending claims is similar to that cited in the section: Genuine unfair dismissal protection.

Improvements1. In relation to multiple actions, the Fair Work Act should either cover the field in relation to

discrimination in employment or vacate the field completely. The State systems and federal human rights and equal opportunity legislation already covers discrimination in employment.

2. If the Fair Work Act continues to regulate this area then the ‘workplace rights’ must be more narrowly and precisely defined.

3. The onus of proof should be upon the applicant in all cases

4. There should be an obligation on the applicant to demonstrate a prima facie case at first instance.

5. The reason for dismissal or adverse action must predominately be for the prohibited reason (not part of the reason).

6. The respondents should be entitled to claim costs against unsuccessful applications and public apologies.

Individual Flexibility Arrangements

Issue1. Individual flexibility arrangements in modern awards are not reflective of the statutory objective in

the Fair Work Act or the stated objective in the Explanatory Memorandum to the Bill and Second Reading Speech.

a. In particular, the objective in the Act is to enable:

“... an employee and his or her employer to agree on an arrangement varying the effect of the award in relation to the employee and the employer, in order to meet the genuine needs of the employee and employer.”22

b. The stated objective in the Explanatory Memorandum to the Fair Work Bill, was as follows:23

“Modern awards will contain a flexibility clause enabling employers and employees to agree on flexible arrangements varying how modern awards work. This will ensure that the needs of employers and employees are met. It will assist employees in balancing their work and family responsibilities and improve retention and participation of employees in the workforce. The

22 Section 144(1) Fair Work Act 2009

23 Fair Work Bill 2008 House of Representatives r.102, page xxviii Attachment 2 page number 11

simplification and increased flexibility associated with modernised awards, together with the reduced regulatory burden on business, are all consistent with the Government’s agenda of increasing productivity.” (r.102)

2. The limited scope and duration make such an arrangement almost useless for a small business employer. The failure of the provision to meet its stated objective is both an issue of the manner in which it has been applied in modern awards by Fair Work Australia (and therefore a matter for the Review of Modern Awards) and one of statutory construction. We take issue with the statutory construction in this submission.

3. The requirement to make an IFA to vary the terms of a modern award regulating penalties, allowances and overtime and the common law principle allowing employers to ‘set-off’ award entitlements against over-award wages is unclear. Is an employer required to make an IFA to ‘set-off’ award entitlements to allowances, overtime and penalties?

Evidence

1. There is not currently any data collected (as far as we are aware) to indicate how many employers and employees have made an IFA and to what purpose. Therefore it is not possible to draw any conclusions as to whether the use of an IFA contributes to improved productivity, participation and retention at the individual business/firm level.

2. The limited scope of an IFA acts as an inhibitor on its use. This may be illustrated by way of example.

A common practice of small business is to offer employment on the basis of an over-award wage or salary that is paid in consideration of a flexible approach to work and is generally ‘set-off’ against any monetary obligations imposed under an applicable award such as annual leave loading, overtime and penalties. This arrangement is prohibited under section 340(1) of the Act if one is to presume that the statutory requirement of an IFA is necessary to ‘set-off’ the monetary obligations imposed under the award i.e. ‘setting-off’ or absorption is akin to ‘varying the effect of the award’.

The issue of absorption of award entitlements into over-award payments was partly addressed by the Full Bench of Fair Work Australia but a different context in the Manufacturing and Associated Industries Award 2010 [2010] FWAFB 4488. In that matter the issue was absorption of the monetary obligations arising from transitional provisions of the modern award. The Full Bench concluded:

“... In clause 2.2, the monetary obligations imposed on an employer by a modern award are the monetary increases payable to an employee arising from the modern award. The overaward payments are those applying immediately prior to the implementation of the relevant clauses of the modern award. Clause 2.2 permits the absorption of the monetary increases arising from the modern award into such overaward payments when an employer is not otherwise obliged to maintain the overaward payments.”24

The potential for breach of section 340(1) of the Act where an employer offers employment with ‘all up’ over-award payments remains unresolved and a significant inhibitor to the use of the IFA mechanism.

3. National economic indicators over the relevant period sourced from the Australian Bureau of Statistics do not support the contention that the use of IFA has become a means to improve productivity or participation and retention rates in Australian small business.

a. According to the most recent Australian Bureau of Statistics the participation rate of the Australian labour force has not improved.25

24 Manufacturing and Associated Industries Award 2010 [2010] FWAFB 4488, paragraph 17

25 Australian Bureau of Statistics, 6202.0 - Labour Force, Australia, Dec 2011, Table 01Attachment 2 page number 12

b. The Key measures of labour productivity in Australia indicate negative growth over 2010-2011.26

4. Evidence of the inclusion of an IFA clause in enterprise agreements27 is not an indication of its usefulness to employers and employees or the manner and frequency of such individual agreements.

ImprovementThe IFA provisions should be prescribed exclusively in the Act rather than modern awards and

1. allow the offer of an IFA as a condition of offer of employment

2. not be limited to 4 weeks notice to terminate

3. allow the variation of a broader range of terms of the modern award

4. apply factors such as access to flexible and additional hours of work, balance of work/life issues, and parental responsibilities as substantially weighted measures in the Better off overall test (BOOT)

5. A properly signed and witnessed IFA must not be challenged by the Fair Work Ombudsman unless there is a complaint from the employee of duress or misrepresentation.

6. The Review should enquire into the matter via case study or testimony of a representative sample of small business employers as supportive or otherwise of the submission on this matter.

Transfer of business

Issues1. The coverage of transferring employees by ‘old employer’ enterprise agreements pursuant to section

313 of the Act including the absence of reasonable ‘sun setting’ provisions inhibits employment and productivity.

2. The regulatory hurdles to substitute alternative arrangements are cumbersome, costly and unnecessary.

3. Uncertainty in the granting orders pursuant to sections 318-320 creates unnecessary regulatory and financial risk to decisions on business acquisition and mergers.

Evidence

1. Fair Work Australia provides basic data on the frequency of applications for orders pursuant to section 319 and section 320 of the Act in the Quarterly Reports. However, this data does not show how Fair Work Australia responds to the applications in areas of relevance to productivity and flexibility such as:

The period of time to process applications

The assistance provided by Fair Work Australia to parties seeking orders

The attitude of Fair Work Australia Members to applicants

The cost to business of obtaining orders pursuant to sections 318, 319 and 320 of the Act.

Periodic research and analysis of applications would assist in determining whether the objectives of the Act are being achieved.

26 Australian Bureau of Statistics, 5204.0 - Australian System of National Accounts, 2010-11 Table 13

27 Fair Work Act Review Background Paper 12 January 2012 page 14Attachment 2 page number 13

2. A random sample of forty Fair Work Australia decisions28 indicates that the vast majority of applications for orders pursuant to sections 318, 319 and 320 are granted. This begs the question of what the usefulness is of having to obtain orders when they are seemingly granted in the majority of cases. However, characteristic of each of the successful applications is:

a. the consent of a relevant union

b. A current enterprise (or certified) agreement covering the new employer

c. The applicants are not small businesses

d. Orders take a minimum of three weeks from the date of the application but may take in excess of three months.29

e. Costs of obtaining orders are not known but seem to require at least one half day of hearing the application in addition to costs in preparation and filing.

3. Notwithstanding the findings in point above, the cost and risk to small business of an unsuccessful application is an inhibitor to growth of small business. The reasons are

a. The cost of preparing, filing and representation for a competent application impose a disproportionate financial burden on small business

b. Small business growth opportunities arise through:

i. contracting with larger businesses to deliver parts of the business in more innovative, flexible and cost efficient means, and

ii. acquisition of less efficient businesses

each of these drivers of growth may be considered negatively in relation to section 318(3) of the Act

c. Small business employers are rarely covered by enterprise agreements commensurate with the terms and conditions of employment of the business they contract with or acquire.

d. The following case study illustrates the risk and cost to small business:

Example 1

Employer A operates a quality auditing business and contracts with a major University B to deliver quality auditing services to its clients in the health and community services sector on its behalf. University B employs the staff to perform the work that is covered by the enterprise agreement covering all University staff.

On the expiry of the outsourcing agreement with University B in 2011, Employer A decides to perform the work itself and compete in the open market. It intends to offer transferring employees terms and conditions of employment in excess of the applicable modern award and industry standards but cannot offer University B enterprise agreement terms and conditions. Employer A is not a university and there is no synergy between Employer A and the business of a university. Employer A will suffer significant economic disadvantage if it has to pay University B terms and conditions.

An application for an order pursuant to section 318 of the Act is prepared by Employer A at a cost of $30,000 including legal, accounting and management consultancy fees. Notwithstanding the absence of any objections to the application the Deputy President

28 The random sample was drawn from a key word search of the Fair Work Australia decisions search engine. The key phrases applied were: ‘transfer of business; and ‘enterprise agreement’. 40 decisions were listed.

29 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; The Commonwealth Scientific and Industrial Research Organisation (CSIRO) [2010] FWA 1171


informs the applicant that he would not grant the order unless an alternative enterprise agreement was made in like terms of the University B enterprise agreement. Employer A is unable to engender interest from the industry union for a Greenfields enterprise agreement.

Employer A subsequently withdraws the application and engages a third party to employ staff to deliver its services.

Improvement

1. Change the reference to Transfer of Business to Transmission of Business in the Act

2. The work activities performed by the employees should not form a relevant consideration to determine whether a transmission of business had taken place.

3. Substitute the High Court interpretation of a transmission of business for the meaning of a transferring employee.30

4. All employment instruments that cover new employers under a transfer of business (transmission of business) to automatically expire within 6 months of the transfer of business.

5. Modern Award and NES coverage are sufficient to ensure employees are treated fairly in a safety net whilst allowing businesses to be acquired and disentangled as needed to compete more efficiently in the market.

Enterprise Bargaining

IssuesEnterprise bargaining is generally irrelevant to small business employer. However, the following are issues impacting on small business

1. The default bargaining representative provisions of the Act are a disincentive to small business entering into enterprise bargains with employees.

2. The application of the Australian Nursing Federation (ANF) for a low paid authorization and determination is a matter that should be carefully studied by the Review.

Evidence

1. Fourteen percent of private sector employees were trade union members in their main job in August 2010.31 The percentage is likely to be less than 10 percent in the small business sector. The initiation of bargaining in small business operates as a de facto invitation for third party interference in the small business. Third parties that have no prior understanding or relationship with the employer are unlikely to assist the bargaining process.

2. The target of the application – nurses employed in private specialist medical clinics and general practices are not professions or occupations that would normally be characterised as low paid. It is not entirely clear whether the application may succeed (nurses in private practice are paid on average in excess of 10% over-award and generally are capable of negotiating flexible hours of work to suit) but the action and hearing of the matter is arguably inconsistent with the true intent and purpose of the legislation.

30 According to the two leading cases in this area, PP Consultants Pty Ltd v Finance Sector Union of Australia (2000) 201 CLR 648 (PP Consultants) and Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd & Anor (2005) 214 ALR 24 (Gribbles), the courts indicated that they would look to the character of the old business and the character of the new business to determine whether a transmission of business had occurred.

31 Australian Bureau of Statistics, 6310.0 - Employee Earnings, Benefits and Trade Union Membership, Australia, Aug 2010Attachment 2 page number 15

Improvement

1. Amend section 176 of the Act to delete reference to default bargaining representatives.

Modern award transition

Issues1. The five year transitional provisions applicable to minimum wages, penalties and loadings are overly

complex and difficult to administer. The complexity creates a further regulatory risk to small business employers.

2. Penalty rates in modern awards such as those listed are not reflective of modern business trading patterns and are an inhibitor to employment growth, labour productivity and growth of small businesses.

General Retail Industry Award 2010 [MA000004]

Hospitality Industry (General) Award 2010 [MA000009]

Pharmacy Industry Award 2010 [MA000012]

Restaurant Industry Award 2010 [MA000119]

EvidenceThere are in our estimation at least seven pathways (and therefore transitional wages, loadings and penalties) through the transitional period to the full operation of modern award wages, loadings and penalties. See figure 1 overleaf. Theses pathways are further multiplied when the eight States and Territories are applied to the equation.

The requirement for small business to apply transitional wages, loadings and penalties in this manner is oppressive and unfair. The regulatory risk rating to small business is extremely high. The likelihood of error is highly probable and the impact is significant as the Act imposes strict liability on employers to comply with modern awards.

The figure below illustrates the pathways based on the employer’s corporate status and whether they were covered by pre-modern or State awards.

Figure 1 - Multiple transitional wages, loadings and penalties

National System

Pre-modern award

Modern award transitional provisions 1 Jan 2010

Incorporated entity

National System

NAPSA (State Award)


Incorporated entity

National System

FMW (award free)


Incorporated entity

National System

FMW (award free)

FMW (No modern award)

Incorporated entity

State System

Division 2B award

Modern award transitional provisions 1 Feb 2011

Sole trader, Partnership

, Unincorpor

ated business State System

Award free

Modern award (no transition)

Sole trader, Partnership Unincorpor

ated business

State System

Award Free

FMW (No modern award)

Sole trader, Partnership

, Unincorpor

ated business

Improvement

1. Apply a single transitional wage, loading and penalty for each modern award effective from 1 July each year until the full rates commence operation in 2014.

2. Fair Work Australia must publish orders that prescribe the single transitional wages, loadings and penalties


http://www.fwa.gov.au/documents/modern_awards/award/ma000119/default.htm




3. Weekend and public holiday penalties in modern award reduced to 120% of the ordinary rate for small business.

Further assistanceIf you would like further advice or clarification on any of the Analysis and Recommendations please contact me or I may refer you to our adviser on this Mr Paul Maguire from Maguire Consulting. We will be available to speak directly on this issue.

Peter StrongExecutive DirectorCOSBOA


References

General Australian Bureau of Statistics 1321.0 - Small Business in Australia, 2001Australian Bureau of Statistics, 5204.0 - Australian System of National Accounts, 2010-11 Australian Bureau of Statistics, 6202.0 - Labour Force, Australia, Dec 2011Australian Bureau of Statistics, 6310.0 - Employee Earnings, Benefits and Trade Union Membership, Australia, Aug 2010Fair Work Act Review Background Paper 12 January 2012Fair Work Australia, 2010-11 Annual ReportThe Senate, Employment, Workplace Relations and Education References Committee Unfair Dismissal and Small Business Employment Report June 2005

LegislationFair Work Act 2009House of Representatives, Explanatory Memorandum Fair Work Bill 2008House of Representatives, Fair work Bill 2008 Second Reading Speech The Hon Julia Gillard MP Minister for Employment and Workplace RelationsHouse of Representatives, Second Reading Speech Fair Work Bill 2008House of Representatives, Second Reading Speech, Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009Senate, Supplementary Explanatory Memorandum Fair Work Bill 2008Small Business Fair Dismissal Code

List of cases citedAngelina Akee & Others v Townsville Aboriginal & Islander Health Service Ltd [2012] FWA 736Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; The Commonwealth Scientific and Industrial Research Organisation (CSIRO) [2010] FWA 1171Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868Manufacturing and Associated Industries Award 2010 [2010] FWAFB 4488Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd & Anor (2005) 214 ALR 24Narong Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Cafe [2010] FWA 7891Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166PP Consultants Pty Ltd v Finance Sector Union of Australia (2000) 201 CLR 648Siriwardana Dissanayake v Busways Blacktown Pty Ltd [2011] FWAFB 6487

Websiteshttp://www.fwa.gov.au/ http://www.fairwork.gov.au/ http://www.abs.gov.au/


http://www.abs.gov.au/websitedbs/D3310114.nsf/home/home?opendocument

http://www.fairwork.gov.au/Pages/default.aspx

http://www.fwa.gov.au/

Documents

docs.employment.gov.au€¦ · Web viewTherefore it is not possible to draw any conclusions as to whether the use of an IFA contributes to improved productivity, participation and