Editors Note: This is a guest post written by David Bates, Managing Director of Workforce Guardian. His opinions are his own.
The Commonwealth Government’s Fair Work system has been with us now for over three and a half years and clear trends are beginning to emerge. This was brought home to me last year as I travelled regularly around the country speaking with business owners and heard first-hand the same stories from wary – and weary – employers.
As we find ourselves at the beginning of a new year, it’s worth reflecting on what we know now about Australia’s increasingly complicated employment laws.
The number of unfair dismissal cases continues to increase year-on-year, primarily as a result of the removal of the automatic exemption for ‘small businesses’ from these laws. There are now a staggering 14,000 unfair dismissal cases lodged against employers every year.
Most employers settle the claim at the early ‘conciliation’ stage by offering to pay ‘go-away’ money to the ex-employee. We now know this is fraught with danger and should only occur when it’s really in the best interests of the employer.
Modern Award Coverage
We know now that it is absolutely essential that employers obtain written advice confirming which Modern Award (if any) applies to their employees. While advice from the Fair Work Ombudsman (FWO) is not legally-binding, anecdotal evidence confirms that you are far less likely to be penalised if you have followed the FWO’s written advice in good-faith.
We also know that there are a number of confusing discrepancies between Modern Awards and the Fair Work Act 2009 itself. For example, some Modern Awards make it quite clear that leave loading should not be added to unused annual leave paid out to departing employees. However, the FWO has indicated that these Awards are inconsistent with the Fair Work Act 2009 and employers must always pay out leave loading regardless.
National Employment Standards (NES)
When it comes to the ten mandatory NES, we now know that many – if not most – employers are still trying to come to terms with the practical implementation of these legal obligations.
For example, many employers still aren’t giving out copies of the Fair Work Information Statement to new employees or properly handling parental leave and flexible working requests despite the fact that each breach of the NES can carry a penalty of up to $33,000.
These are just some of the trends now emerging as time goes on.
At best, employers remain confused and, at worst, they are entirely unaware of the risks of continued non-compliance with Australia’s re-regulated labour market.