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Case For Change

Published June 24, 2020 (last updated June 30, 2020) -
employers navigating australia's workplace relations system

Australia’s workplace relations system is too complex.

That’s the message we hear every day from the small business owners around Australia who are trying to navigate a notoriously difficult system.

This sentiment is consistent across state, territory and industry. We know this because Employsure consultants conduct 1,500 face-to-face meetings per week with small businesses, and our advice team handle more than 270,000 calls every year.

The upcoming workplace relations reform is a change to change things for the better. It’s a chance to help the thousands of business owners who drive our economy and employ millions of Australians.

This is the case for change.

Clarity on Casuals.

A recent Federal Court decision could entitle millions of casual workers to claim back pay for unpaid leave entitlements, despite already receiving the “casual pay premium”.

Dubbed the ‘double dipping’ decision, it has created a potential legal precedent that could cost the small business sector up to $8 billion in back payments to casual workers, according to the Ai Group.

Small business owners are already facing a complex web of red tape and a raft of workplace relations legislation that is constantly being amended by the workplace relations tribunal.

To complicate the matter further, the term ‘casual employee’ has no precise definition in the Fair Work Act, and is largely defined by court decisions, leaving small business without clarity.

An Award System That Works For Everyone.

There are more than 120 Modern Awards in the Australian workplace relations system. For some businesses, even small ones, they may have to comply with more than one Award. It’s not just the minimum wage or award rate that’s the most difficult part, but many employees struggle with the myriad entitlements, and varying rates throughout the time of week and time of day.

There must be some acknowledgement that the complexity of Australia’s workplace relations system is a contributing factor in small businesses found to be failing to meet their obligations. Any move to introduce Wage Theft laws must not unfairly target or criminalise small business owners and mum and dad employers who are trying their best in a very difficult system.

With this in mind, the small business provisions of the Fair Work Act must be expanded to ensure that there is a reduction in penalties and breadth of compliance obligations placed upon small businesses.

Greater Power To Dismiss Vexatious Unfair Dismissal Claims.

As it stands, an employee is able to file an Unfair Dismissal claim in the Fair Work Commission for a small fee of $73.20 (which is waived in cases of financial hardship).

This means that for a low cost, an employee can bring a claim that is without prospects of success and is unlikely to suffer the consequences of having to pay the other party’s legal costs.

This process encourages small business owners to settle, as it is often the cheaper option than proceeding to arbitration or a hearing.

Not only is this unfair, it has also created a cottage industry of no win, no fee lawyers who prey on recently dismissed employees at the expense of small business owners, knowing that they are likely to receive “go away” money, even where prospects of success are low.

We are advocating for a system that allows businesses with fewer than 20 employees to have Fair Work matters decided ‘On the Papers’ to identify and remove vexatious matters before reaching conciliation stage.

Employsure also publicly supports the Australian Small Business and Family Enterprise Ombudsman and its calls to review the Small Business Fair Dismissal Code to ensure it meets its intended functions and objectives.

About Employsure.

Employsure is Australia’s largest workplace relations specialists.

We take the complexity out of workplace laws to help small business employers protect their business and their people.

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