Devils in the details: Peetz
David Peetz Professor of Employment Relations Griffith Business School Griffith University< Comments on the Fair Work Bill from his Senate submission No 132 focuses on specific matters of implementation or detail, or departure from the promises of Forward with Fairness. ... ‘The right to request flexibility for an employee is an unduly negative approach to flexible working hours, implicitly setting an impediment to informal flexibility by indicating that casuals or employees with short job tenure are not allowed to even make a request. …The steps involved in assessing an employee’s request are manifestly inadequate. …
If there is no obligation on an employer to meet with the requesting employee, then the employer is much less likely to understand the circumstances of the request. This is especially the case for workers who might be disadvantaged in the labour market, including younger workers, and workers from a non-English speaking background, who may have difficulty in clearly expressing in writing all the aspects of their case.
10. To fully explain their needs, or to enable the employee to properly understand the implications of what is being said or proposed by the employer in response to the request, many employees will need the support of an accompanying person. This is especially the case for employees who are less confident, less articulate, less familiar with English, or less experienced.
11. Similarly, if there is no obligation on an employer to meet with the requesting employee, then the employer is much less likely to take the request seriously, or to feel a sense of obligation to attempt to meet the employee’s request within the needs of the business. A meeting will reinforce the employer’s appreciation of the personal circumstances of the employee concerned.
12. Accordingly, a right to a meeting, including a right to bring along a companion, should be included in the right to request, and should be modelled on the UK framework.
The Bill should include a right of employees to appeal an adverse decision, along the lines of the UK model.
23. The Bill provides no indication as to what should happen if the employee believes, rightly, that their application has been unreasonably rejected, in particular if they feel that the employer has not followed proper procedure in assessing the application. Indeed it explicitly prevents FWA from settling a dispute over whether an employer had genuine business grounds (subsections 739(2) and 740(2)).
The Bill should include a right of employees to apply to Fair Work Australia for resolution of a dispute over a request for flexible working arrangements, where the employer has failed to follow the procedure properly or the decision by the employer to reject an application was based on incorrect facts.
The Bill provides no criteria for determining “reasonable business grounds” for refusing a request for an extension of unpaid parental leave. This creates uncertainty and increases the likelihood that a request will be incorrectly refused. The meaning of “reasonable business grounds” should be clarified in the Bill, as outlined in paragraph 14 above (clause 76 or clause 12) 32. An employee should have a right of internal appeal against a decision to refuse a 12 month extension of unpaid parental leave, along the lines canvassed in paragraphs 19-21 above (clause 76).
33. The Bill should include a right of employees to apply to Fair Work Australia for resolution of a dispute over a request for an extension of unpaid parental leave, where the employer has failed to follow the procedure properly or the decision by the employer to reject an application was based on incorrect facts (clause 739 and 740).
The mere fact that cashing out of annual leave is now on the table for a national minimum standard, whereas only a short time ago it was severely admonished by members of both Houses, 8 is an indication of how easily such standards can be eroded in a relatively short time.
40. Forward with Fairness states that ‘Where an employee works on a public holiday, they will be entitled to an appropriate penalty rate of pay or other compensation. This will be set out in the applicable award.’ 9
41. The Bill makes no reference to this entitlement to compensation for working on a public holiday. It is appropriate that the nature of the entitlement be set out in the relevant modern award, but if the existence of this entitlement is not specified in the Bill, the entitlement to compensation will be able to be repudiated by an agreement. Evidence indicates that agreements, including (non-union) collective agreements, were used to remove ‘protected’ conditions such as penalty rates and public holidays. 10
42. Workers should be entitled to the benefits of public holidays. Public holidays exist for reasons of community celebration and benefit, and all workers should be entitled to such a benefit. For the majority of workers, this benefit takes the form of a day off to commemorate the particular occasion in the way that suits them.
For a minority of workers – for example, some in essential services – it is not feasible for all to have a guaranteed day off. Those workers should be paid a significant premium for working that day, and also be entitled to a day off in lieu. Even a country with quite parsimonious minimum standards, such as New Zealand, protects public holidays. The Bill proposes to protect pubic holidays, but with some loopholes.
. The Bill excludes long term casual employees from entitlement to redundancy pay.
Employees not traditionally covered by awards (clause 143(7)) 54. This subclause is intended to prevent managerial employees and other employees who have traditionally not been covered by awards from being covered by modern awards.
However, as it is presently expressed it runs the danger of excluding from future modern award coverage occupations that are newly emerging or that do not presently exist, even though these future occupations may essentially be working class or at least nonmanagerial in nature.
The Bill appears to indicate no role for Fair Work Australia in improving on or updating standards.
Although the restrictions are less onerous both in terms of content and penalties than the ‘WorkChoices’ provisions, they are an unnecessary intrusion into the relationship between employers and employees, in effect telling employers what is best for them.
If employees and employers want to reach an agreement that deals in part with a social, environmental or community issue that is not directly pertaining to the employment relationship, they should be free to do so. Indeed in many cases it would be socially or environmentally desirable for them to do so.
Under this clause, the access period (the amount of time which employees are meant to have access to a proposed enterprise agreement before voting on it) is seven days. This seems an inappropriately short period of time for workers to consider the ramifications of an agreement, particularly where this is the first time that the agreement has been sighted by employees (unlikely to occur in a union bargaining context, or where a non-union agreement has been negotiated by bargaining agents, but more likely when the employer presents an agreement to a non-union workforce to approve).
This clause requires that, subject to exceptional circumstances, an application for an unfair dismissal remedy be lodged within seven days of the dismissal. This is, by international standards, a very short time for lodgement of such a claim (for example in New Zealand it is, in effect, 90 days). It is so short that a dismissed employee may fail to lodge a claim simply because they are unaware at that point of their rights or of the seven day limit or are too upset to lodge a claim. The New Zealand legislation provides for a specific exemption from the time limit ‘where the employee has been so affected or traumatised by the matter…that he or she was unable to properly consider raising the [dismissal] within the period specified’. 21
The pattern bargaining provisions are, to the best of my knowledge, unique internationally. No other enterprise-based industrial relations system of which I am aware has a prohibition on pattern bargaining, principally because pattern bargaining – a process whereby early agreements set the benchmark which are followed by later agreements – can be a natural way for enterprise based system to operate (as with, for example, the Japan spring wage negotiations, which represent strong pattern bargaining by both sides in an exclusively enterprise-based system).
Trying to prohibit it would be like trying to outlaw notions of comparative wage justice or fairness in employee expectations. Employers may engage in pattern bargaining as much as unions.
The Bill indicates that, for unprotected action, the employer is required to deduct at least four hours pay even when the action is for less than four hours.
95. This is another instance of the Bill trying to tell employers what is good for them, and interfering in the relationship between employer and employee.
It should be up to employers to determine how they are to respond to industrial action. The automatic deduction of four hours pay may mean that employees will walk off the job for four hours when they would otherwise do so for only half an hour. Thus this provision can add to employers’ costs. It can also create inequities for employees.
For example, employees who stopped work for 20 minutes to collect money for the widow of a colleague killed at work were, technically, engaged in unprotected industrial action. These employees lost, and would continue to lose under this provision, four hours pay for being off work for 20 minutes.
Another group of workers were two minutes late back to work after a meeting with a Member of Parliament and had four hours pay deducted from their pay packets, while yet others lost four hours after a safety meeting started late and ran 30 minutes into work time. While it is appropriate that workers lose pay for time they are off the job and unauthorised to do so, it is inequitable and promotes ill will to require that they are not paid for the hours that they do work.
Further concerns are in his Senate submission 132.
http://www.aph.gov.au/Senate/committee/eet_ctte/fair_work/submissions.htm
Fair Work Bill
