The Fair Work Bill has reforms for unfair dismissal for some…but there is still no reinstatement remedy for millions.
The FWB abolishes the 100-employer threshold for taking unfair dismissal proceedings that under WorkChoices meant over 4 million employees could be dismissed at will – harshly and unreasonably. But millions could still miss out.
A remedy for unfair dismissal is a human right.
In their Industrial Relations Court report on the impact of WorkChoices on South Australian workplaces, they said:
‘We consider there is cause for concern at the serious implications the lack of recourse to an unfair dismissal remedy has for many in the workforce, resulting as it does in a loss of self esteem, a sense of disempowerment, and anger and resentment at an inability to seek redress or to have grievances heard. We conclude also that there is a pervasive sense of job insecurity as a result of Work Choices, particularly in lesser skilled and lower wage areas of employment. A substantial cause of this insecurity is the exclusion of many employees from any access to an unfair dismissal remedy.’
The principle of allowing an individual human right for an employee to apply for unfair dismissal to be heard in a tribunal (not necessarily to win or be reinstated, but to be heard) was enacted in South Australia in 1972, first to go to the Industrial Court and later to the Industrial Commission. This was an individual unfair dismissal remedy, irrespective of the size of the employer.
But in the Fair Work bill the wrong principles of WorkChoices are continued where millions of individuals are denied such a right.
In the FWB employees of employers who employ fifteen or less employees will only be able to take unfair dismissal proceedings after twelve months employment and in larger business after a period of six months.
And of course, corporate lawyers will use this.
The 12-month qualifying period for workers excludes 22% of small business employees from claiming unfair dismissal; 41% of all hospitality sector workers; and 64% of young people. It is almost as harsh as the total ban under WorkChoices!
There should be as a question of principle no qualifying period – the length of service an issue only on the merits of the unfairness or not. In other areas of law, small businesses are not exempt.
particularly, in a recession, any worker deserves the right to be reinstated if dismissed harshly or unfairly.
For small business employers the government will have a Small Business Dismissal Code that if followed means that the dismissal cannot be ‘unfair’. The Code requires the giving of one warning based on a reason that validly relates to the employee’s performance or capacity to do the job, and a reasonable opportunity for the employee to improve his or her performance.
Apart from legal technicalities about how this will apply, it is doubtful whether such codification will lead to greater justice for employees in small firms. How can we be sure that a dismissal, although procedurally fair, is not actuated by malice or caprice? When an employer dismisses an employee e.g. for theft, there is no requirement for the employer’s suspicion to be correct, or for the employer to provide the employee the opportunity to put forward any relevant mitigating circumstances. The Code is a fraud for workers rights, but bolsters the harsh practice of allowing small business dismissal at will and during recession makes any promise of job security more illusory.
I strongly object to the legal rule requiring only 7 days to file an application. This is worse than in some State jurisdictions of 21 days and for ‘unlawful dismissal’ 60 days.
The DPM is into ‘ 1984 spin’ saying that unfair dismissal rights are restored. In practice this time limitation will defeat many chances of a fair hearing and possible reinstatement. Just imagine how corporate lawyers will enforce this.
Furthermore, it is outrageous that the FWB makes collective agreements unlawful where the parties want to agree to have unfair dismissal entitlements for employees who have not served the statutory minimum qualifying period. The FWB prevents an employer not only from waiving or shortening the qualifying period for access to statutory unfair dismissal provisions including where the employer is the prospective employer in a transfer of business, but also from conferring any private remedies or entitlements upon their employees… if they so choose.
So much for the DPM’s election promise that workers and employers would be free to agree bargain over whatever they want, a basic workers’ right!
On the issue of ‘unlawful dismissal’, I question the unfair process limitation of 60 days when the usual time limit for civil claims is 6 years.
Your Rights at Work deserve better.
I add that it has been for a decade simply Reith 1984 spin that denying a right to go to the umpire over unfair dismissal somehow creates jobs.
I remember former Minister Reith grinning at me when he proudly said his press secretary made it all up. What a joke, he said: sacking people unfairly without a remedy creates jobs!
Since then academic studies and reports including this Senate quote, say that it is not the case that unfair dismissal laws create unemployment:
‘there is no empirical evidence or research to support the Government’s claim that exempting small business from unfair dismissal laws will create 77,000 jobs. The proposition at the heart of this argument is breathtaking for its lack of logic and empirical support. A review of the evidence shows conclusively that the claims made by the Government and employer groups are fuelled by misinformation and wishful thinking rather than objective appraisal of the facts…’
So let’s not accept the Liberal party rubbish still being pushed in the press.
Fair Work Bill
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