IN releasing its new draft benchbook on the Fair Work Act’s ‘General Protections’ provisions, the Fair Work Commission (FWC) has indicated it wants to increase the assistance provided to self-represented parties in pursuing their workplace rights in areas like adverse action and unfair dismissals.

With the general protections provisions being one of the key areas of concern for employers in operating under the Fair Work Act, this provides a timely opportunity to detail the work AMMA has done with our Board Reference Group (BRG) and wider membership on our policy position and advocacy plans for the near future.

Background

The general protections provisions in the Fair Work Act (Part 3-1) are ostensibly a simplified, low-cost alternative to the freedom of association, unlawful termination and unlawful conduct provisions in the former Workplace Relations Act.

However as many of our members have learned the hard way, in practice these provisions have proven significantly wider in scope and availability, are imprecisely worded, duplicate other mechanisms and have generally burdened employers with significant new liabilities, uncertainties and compliance costs.

The major area for concern remains the ‘adverse action’ area of the general protections.

Adverse action has been one of the six priority areas for workplace reform that AMMA has been lobbying for on our members behalf since well before the Fair Work Act came into effect.

The general protections, including adverse action provisions, were intended to provide a ‘low-cost’ single enforcement process and a combined set of remedies when dealing with workplace and industrial rights.

In practice, they have had the opposite effect in over-regulating the workplace with unjustified and crippling compliance burdens and undue costs. Our members have long told us this creates unnecessary workplace and commercial uncertainties.

Summary of key issues

In the view of AMMA and our members, the adverse action provisions are inconsistent with the Fair Work Act’s stated objective of promoting ‘productivity and economic growth for Australia’s future economic prosperity’.

In short, the key issues are that the provisions:

  1. Are inconsistent with an employment relationship based on common interest and partnership, as they inherently assume conflict in the workplace and subordinate employer interests;
  2. Do not seek to regulate workplace relations so much as to introduce subjective judgements on perceived inequalities such as discrimination issues which historically were not part of the workplace relations jurisdiction.
  3. Are unreasonably accessible to individuals with availability to past, current and prospective employees in respect of a ‘workplace right’ – a term which is unreasonably imprecise;
  4. Destroy procedural comparability, by extending the reversal of the onus to the broad range of general protections disputes (in the past, the reversal of onus was very specifically confined to freedom of association and unlawful termination matters).
  5. Create undue and uncertain imposts due to the wide range of remedies, including civil penalties, and unlimited compensation.

The unreasonable accessibility to the adverse action remedies (Point B) has been particularly concerning for employers. We have witnessed adverse action proceedings, or threats to bring such proceedings, increasingly used as a quasi-unfair dismissal jurisdiction by senior employees who would not otherwise have access to that mechanism.

Employers have also been exposed to claims from employees up to six years after the event relating to actions during the course of employment. Of course, employers simply do not have the records or access to their ex-managerial staff to be able to defend such claims.

Coalition Government policy

In its Policy to Improve the Fair Work Laws released prior to the 2013 federal election, the Coalition stated that if it won government it would undertake a comprehensive and broad review of the Fair Work Act to ensure Australia’s workplace laws ‘work for everyone’.

More recently, Employment Minister Eric Abetz notified the Federal Court of the government’s decision to intervene on public interest grounds in support of a Victorian government appeal of a recent adverse action case (relating to the enforcement of the state government’s Construction Code of Conduct).

Senator Abetz said the case had ‘significant implications’ for the operation of the Fair Work Act’s adverse action provisions and it was in the public interest to intervene in support of the Victorian Government’s appeal of the findings.

This provides a positive sign that the new government may be more willing to act in the adverse action space than its general policy indicates.

AMMA’s policy representation

Given that this is one of the six key priority areas for workplace reform identified by our members over the past four years, AMMA is actively seeking to influence the Abbott Government’s agenda regarding the timely amendment of the adverse action provisions of the Fair Work Act.

An important part of this process will be providing the impending Productivity Commission review with detailed and well-reasoned evidence regarding the need to reform this area of Australia’s workplace laws.

We strongly believe that the legislative ‘protection’ of ‘workplace rights’ must be balanced and consistent with all legislative objectives in s. 3 of the Fair Work Act.

Provisions which make conduct unlawful must be concise and clear in their meaning and application. All general protections provisions should facilitate common interests and partnerships in the workplace. They should not promote conflict.

Our ongoing representation of our members’ policy needs will focus on communicating to the Abbott Government that the pre-Fair Work protections regarding freedom of association, unlawful termination and a narrower range of unlawful conduct were clear, well-understood and ensured an appropriate balance of power in the relationship between employers and employees.

Specifically, we will argue that the Fair Work Act should be amended to:

  • Regulate only attribute-based unlawful termination, freedom of association, sham arrangements and other specific protections previously included in the Workplace Relations Act 1996, rather than provide ‘general protections’;
  • Abandon the terms ‘general protections, ‘adverse action’ and ‘civil remedy provision’ in favour of significantly more limited redress for clearly specified unlawful actions;
  • Ensure Part 3-1 of the FW Act contains clearly-worded ‘offence’ provisions which prohibit specific unlawful behaviour;
  • Fix the unduly extended reverse onus which causes many of the problems under adverse action claims; and
  • Require a threshold of action or detriment prior to a claim being brought, including specific conduct such as termination of employment, demotion, loss of wages etc., rather than the at large concept of adverse action.

Conclusion

The general protections provisions of the Fair Work Act, particularly the ‘adverse action’ remedies, have long been a major area of concern for employers because in practice they are an unjustified and crippling over-regulation of the workplace.

They are inconsistent with good employer-employee relations, do not promote productivity or economic growth, are over-accessible, alter the rules of evidence, and create undue and uncertain imposts for industry.

AMMA’s key objective in this area is to provide available evidence and ensure the Productivity Commission review gives weight to employer submissions in this area. Regrettably, this appears not to have occurred in the previous review of the FW Act under Labor.

Our Board Reference Group has been integral in guiding our policy position in this area and will continue to be key to this process.

We also encourage our wider membership to provide further evidence of the absurd and prejudicial operation of the adverse action system, and assist us as your resource industry policy representatives to bolster the case for change.

For more information or feedback in this important area, please email me directly via [email protected].