The submission from Carolyn Sutherland, Anthony Forsyth and Chris Arup Workplace and Corporate Law Research Group Department of Business Law and Taxation, Monash University 1. proposes that Part 2-2 of Division 12 of the Fair Work Bill be amended to include a requirement for employers to nominate in the Fair Work Information Statement the industrial instruments which apply to employees in the
workplace.
This requirement would encourage employers to turn their minds to this essential issue at the right time in the employment relationship, and would make employees aware of the source of their entitlements, reducing the need for employees to seek third party assistance in order to understand the key conditions of their employment.
2. The proposed requirement would not be unduly onerous for employers. The NES already require the employer to make a statement. The specific information is to the employer’s benefit too. The requirement would be far less onerous than the information requirements which apply in some overseas jurisdictions.
3. We propose that no penalties should apply where an employer makes a mistake in the provision of this information, nor should the incorrect statement be legally binding on the employer.
4. Once an employee has become aware of his or her minimum entitlements under applicable industrial instruments, it is vital that the employee is able to enforce those rights. We welcome the increase in the monetary limit for a small claim from $10,000 to $20,000.
5. To ensure that the small claims procedure is accessible to employees we propose: first, that clause 548(5) of the Fair Work Bill be amended to allow an employee to be represented by a lawyer as a matter of course; and, secondly, that funds be made available to engage duty lawyers on site at the relevant courts to assist employees to navigate through the small claims procedure.
6. We commend the Government’s moves to establish Fair Work Australia (FWA) as a body that is less adversarial, more accessible and responsive to the needs of its users.
7. In our view, the establishment of FWA presents a significant opportunity to move away from the traditional Australian model of industrial tribunals that are mainly focused on resolving disputes brought before them by the parties.
We suggest that the Government could make FWA a much more dynamic, innovative and responsive agency by giving it a more expansive dispute prevention capability.
8. We recommend that this enhanced dispute prevention role for FWA be modelled on the Advisory Services Division of Ireland’s Labour Relations Commission (LRC), and/or the information, advisory and training services provided by the Advisory, Conciliation and Arbitration Service (ACAS) in the UK. Further, we consider that this type of role would be more appropriately located within FWA, rather than within the Fair Work Ombudsman. The promotion of harmonious and cooperative workplace relations sits uncomfortably with a body such as the Fair Work Ombudsman that is likely to be predominantly compliance-focused.
9. Much of the dispute prevention work of ACAS and the LRC involves establishing and developing relationships with industrial relations parties, in order to address the root causes of workplace problems and avoid the need for later recourse to dispute resolution or enforcement agencies. It would be preferable, in our view, to establish a separate division of FWA to provide specialist dispute prevention services of this nature.
This is from the executive summary. The full text is on the Senate’s website.
http://www.aph.gov.au/Senate/committee/eet_ctte/fair_work/submissions.htm
Submission no. 8
Fair Work Bill
No comments yet.