The Fair Work Bill – if passed as legislation – will affect employers in a variety of ways – some of which are set out below:
Unfair dismissal
The removal of exemptions such as those relating to the “100 employee count” and casual employees means employers will need to ensure they are demonstrating procedural fairness to avoid successful claims in this area.
There is uncertainty regarding the representation rights employers will have in connection with unfair dismissal proceedings. Fair Work Australia (FWA) will have the discretion to allow or refuse representation for either the employer or the employee’s representative.
Despite assurances otherwise, the ARA and many employer bodies believe the new unfair dismissal provision will see a continuation of financial settlements in lieu of re-instatement.
Agreement-making
Good faith bargaining is a term frequently used in industrial settings, however what does this mean to you? It means that employers can be forced to negotiate agreements with unions regardless of whether or not the employer is happy to operate under awards. Employers could be forced to expend time and money on negotiations.
Furthermore, the “better off overall” test (BOOT) means the bar will be raised on agreement content requirements putting retailers further out-of-pocket. The BOOT means that not only do agreements have to not disadvantage employees compared to the award – they have to be better.
Agreements will also have a more limited shelf-life of four years resulting in negotiations of agreements on a more frequent basis.
Uncertainty surrounding the definition of “low paid” means there is scope for all Award-based employees to be considered “low paid”. Given that FWA can arbitrate and issue bargaining orders for such employees, retailers again may be forced to negotiate agreement terms despite there being no interest from employers, even if they are abiding by the Award.
Union right of entry
Additional rights for unions to inspect non-member records and documentation beyond employee records raises significant privacy concerns for both non-union employees and retailers alike.
Businesses that previously had little or no involvement with unions, are likely to see an increase in union presence. This will lead to employer allegations of workplace interference by the unions, and claims by unions of employers contravening their obligations to produce documents.
Minimum safety net
In addition to increased labour costs resulting from award modernisation, the Bill also seeks to legislate the new National Employment Standards (NES). The NES provides for 10 minimum employment conditions separate to that contained in modern awards and agreements. This effectively doubles the five minimum conditions currently in place. The NES includes entitlements far more generous to employees than the current safety net provisions, and therefore will result in additional costs to employers.
What action should retailers take now?
The Employment Relations team is available to assist members who wish to secure current employment terms which can be in force for up to five years. Contact ARA Employment Relations for assistance on 1300 368 041 or email employmentrelations@retail.org.au. Remember to have your membership number handy before you make contact.
