THE NSW LAW Society has joined the chorus of condemnation of the federal Government’s workplace reforms, claiming that far from creating a simpler system, the Bill as drafted could lead to a more confusing and flawed industrial relations regime.
“The complexity of the legislation totally ignores the Government’s promise of reducing red tape,” said Law Society president John McIntyre.
His comments follow analysis of the Workplace Relations Amendment (WorkChoices) Bill 2005 by the Law Society’s Workplace Committee. McIntyre said the committee had found several areas of concern in the Bill that appear to contradict public statements.
One area where he said the “deficiencies in the Bill’s drafting is obvious” was in s 170CE(5E), which introduces the restriction on unfair dismissal claims to employers with more than 100 employees. He said it specifies how that number is to be worked out, but “surprisingly … there is no provision to capture what might be called ‘corporate groups’,” where a company has its operations split into separate entities.
This would “allow subterfuges, for example where a corporation has somewhere between 100 and 200 employees. The corporation could split its workforce into two corporations, both controlled by the holding company”, he said.
Another provision appeared to put maternity leave entitlements in NSW “under pressure”. McIntyre said s 94R(5) of the new Bill could oust a woman’s right to a position at a “comparable” level of pay and status on return from maternity leave.
“The Bill could have the effect of a woman returning from leave being forced to take any position.” He said the proposed test in the federal reforms is very different to the test in the NSW industrial relations laws and could lead to “a significant weakening regarding rights on return for women in particular”.
The changes could even affect juries, according to the Law Society, as it would remove the right for employees to seek compensation from employers when called for jury duty.
In NSW, McIntyre said employees would only be entitled to the state’s minimum allowance of $81.60 a day, which he said could mean people couldn’t afford to sit on a jury and seek exemption. “A likely outcome will be a significant reduction in the pool of available jurors.”
The Bill also allows for “substantive amendments” to be made in future to the Act via regulation rather than an Act of Parliament, the society said. “The breadth of the regulation-making powers is of great concern to the workplace committee, McIntyre said. He said alterations to the Act via regulation could also be retrospective.
“It is the committee’s view that substantive amendments to legislation should only be effected by Act of Parliament, not by regulation”
Overall, he said the new laws would lead to a “maze-like” workplace relations system that could seriously erode long established workers’ rights.
“We are drowning in legislation and much of it flows from poorly thought out laws, which are rammed through the Parliament without adequate time given for detailed consideration,” he said.
The Bill passed the lower house on 10 November after debate was cut short by the Government. The Senate Employment, Workplace Relations and Education Legislation Committee was allowed seven days to take submissions after the Bill was tabled in the House of Representatives on 2 November, and was to report this week.
McIntyre said the Bill’s passage should be delayed until at least March next year to allow adequate scrutiny.
“Without this opportunity, we predict that in the long term neither employers or employees will welcome the changes.”
The Government argues numerous provisions in the Bill have already been examined in about 13 Senate inquiries.
As a result, the latest Senate review did not examine amendments affecting areas such as secret ballots, suspension/termination of a bargaining period, pattern bargaining, strike pay, or reform of unfair dismissal arrangements.
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