Leaked IR plans favour small business employers


Leaked IR plans favour small business employers

The federal Government is expected to make an announcement within days on a range of industrial relations issues canvassed in a Cabinet document leaked yesterday, including restricting union right of entry to the workplace and the appointment of a small business commissioner to the Australian Industrial Relations Commission.


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The federal Government is expected to make an announcement within days on a range of industrial relations issues canvassed in a Cabinet document leaked yesterday, including restricting union right of entry to the workplace and the appointment of a small business commissioner to the Australian Industrial Relations Commission.

The document, prepared for the Minister for Small Business, Ian McFarlane, to take to Cabinet, also recommends simplifying procedures for small businesses wanting to engage in Australian Workplace Agreements, after finding they were perceived to be ‘too time consuming, complex, costly and unnecessarily formal for small business’.

‘Small business has been particularly frustrated by the delays which occur even in the case of new employees – at a minimum, employers cannot commence new employees on AWAs until a week has elapsed since the job offer,’ the draft document says.

AWA recommendations

To address these concerns, it recommends the Government:

  • Consolidate the existing assessment of filing requirements and approval requirements into a one step process for approval by the Office of the Employment Advocate;
  • Enable AWAs to take effect from the day of signing for employees in small business;
  • Allow employees in small business to sign AWAs at any time after receiving a copy of the information statement from the OEA and an explanation of the effect of the agreement. This removes a waiting period of five or 14 days for new or existing employees respectively;
  • Permit the OEA to recover any shortfall in entitlements on behalf of employees as a result of allowing AWAs to take effect from the day of approval;
  • Permit a small business employee to withdraw consent within a cooling-off period. This counterbalances the effect of allowing AWAs to take effect from the day of signing;
  • Remove the requirement to offer identical AWAs to comparable employees within a business.

The CEO of the Council of Small Business Organisations of Australia, Rob Bastian, told WorkplaceInfo he was pleased the Government had turned its attention to small business, but felt the reforms didn’t go far enough.

He said COSBOA had been ‘heavily involved’ in the early work on how to implement AWAs and had wanted a scenario where an AWA acted as ‘a standard contract even if nothing [extra] was done’. He said the reason small business employers had not taken up AWAs in greater numbers was because ‘small business by and large operate on inertia in this area’.

He said it was ‘tough enough’ being in small business and to have a standard AWA to act as an employment contract, whether or not it was signed by both parties – he suggested it could act as the ‘whole deal’ even if it was just nailed on the wall – would be preferable. This could then be refined if the parties chose, he said.

Bastian also advocated the further simplification of the language of AWAs, saying having them contain ‘blow by blow’ details could create ‘discord’ between employers and employees, who may be frightened by legalistic terms.

‘The problem with this process is that some clauses are quite frightening to employers and employees,’ Bastian said, using as an example an AWA that may contain something along the lines of ‘Thou shalt not sexually harass’.

‘A simple statement which has a legal twist to it scares people. Sometimes it’s better to have well-constructed laws sitting there quietly behind the AWAs. Small business wants control – not because they want to rape and pillage, but because their funds are at risk.’

Further recommended changes to IR law

Other recommendations in the draft submission include:

  • Amending the principle objects of the Workplace Relations Act 1996 to include reference to the special circumstances of small business – this would force the AIRC to consider those needs in relation to test cases and safety net adjustments;
  • The appointment of a small business commissioner to the AIRC, similar to the way the Australian Consumer and Competition Commission operates. That commissioner would have a hearing role and a broader input into policy development;
  • Employees working in businesses with fewer than 20 workers would not be able to apply for unfair dismissal remedies under the Workplace Relations Act. This would apply only to employees who joined a business after the amendment was made, and would not apply to unlawful dismissal applications – for example, those concerning discrimination;
  • A registrar or Commission member would be appointed to deal with unfair dismissal applications against small business by correspondence, and dismiss any they consider frivolous without any AIRC appearances;
  • Simplifying procedures for approval of small business certified agreements, with no formal hearings required unless requested;
  • Amending the Trade Practices Act 1974 to allow the ACCC to bring actions for compensation in relation to secondary boycotts;
  • Requiring the AIRC to take into account the views of small business employers affected by an award, rather than only those who appear or are represented in hearings;
  • Union officials could only be granted right of entry on a written invitation from a union member in the workplace, and with five working days notice;
  • Preventing awards restricting the engagement of casual workers, contractors or labour hire in small business.

All the above recommendations would require changes to legislation. The document says there would be no cost apart from if a new member was appointed to the AIRC, instead of a reallocation of duties, and ‘small’ costs given the OEA’s increased workload responding to right of entry queries from employers.


A spokesperson for Workplace Relations Minister Tony Abbott referred WorkplaceInfo to McFarlane’s office. His spokesperson said the Government expected to make an announcement ‘very shortly on a range of IR issues in the document’, but said the announcement would not likely be made today.

Opposition IR spokesperson Arch Bevis told WorkplaceInfo the document 'confirms what Labor has been saying since Day One about AWAs - that they're not used and they're not in the minds of employers'.

'The Government's been running a campaign contrary to what they know to be the truth,' he said. 'If the Government's prepared to lie about that in IR, what else will they do?' 

Australian Council of Trade Unions President Sharan Burrow said the plan was an attempt to ‘kiss and make up’ with small business employers after the GST. It would force wage cuts and other hardships on more than one million small business employees, who ‘are already working record amounts of unpaid overtime and suffering under record levels of casualisation’, she said.

‘This plan will further erode the number of full-time jobs and add to the blow-out in casual work that is cutting into the job security of so many people.

‘The Government is setting up small business operators so they can legally avoid paying workers entitlements such as holiday, sick pay and long service leave.’

Burrow also pointed out that the Government’s own experts admit in the leaked document that the plan to stop union representatives from visiting small businesses could be ‘inconsistent with Australia’s obligations’ under international labour rights conventions.



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