THE HOWARD Government has unveiled its next wave of industrial reforms following its re-election. For lawyers, this may mean more work, not just in digesting legislation but in determining when state laws may apply and what potential remains for claims, according to leading workplace lawyers.
With virtual carte blanche to pass what it wants through the Senate, the Government now promises to reduce the duplication of state and federal industrial relations law coverage, to further simplify and extend the use of Australian Workplace Agreements (AWAs) and to push for an overhaul of unfair dismissal laws.
Treasurer Peter Costello said the Government’s “absolute first priority” would be to pass laws that would allow the Government to extend federal unfair dismissal laws to about 7 million workers — up from the current 4 million — and exempt businesses with fewer than 20 employees from access to unfair dismissal legislation.
The Senate has blocked changes to such unfair dismissal laws more than 40 times over the past eight years. However, with the Coalition close to controlling the Senate in its own right (or with the help of the conservative Family First party) for the first time in 23 years, the Government could potentially rush through a number of controversial laws implementing workplace reform.
According to Abbott Tout senior associate Seamus Burke, the largest policy difference between the Coalition and the Labor Party is in industrial relations and employment law.
Burke told Lawyers Weekly the small business provisions will “knock out” part of the work for lawyers. He argued it was a challenging time for all employment lawyers and Australian Workplace Agreements will become so ingrained over the next few years that “future mountains will be higher to climb” if Labor gets in at the next election.
There are two potential battlegrounds for lawyers in this predicted wave of legislative reform, according to Harmers Workplace Lawyers senior associate Peter Smith. Envisaging two possible new areas of work, Smith told Lawyers Weekly that for small business employees who are to be couched as exempt from federal unfair dismissal laws, the question will arise as to whether state laws can cover them.
“The major battlefield is whether state laws still apply,” said Smith. “It does depend on how they try and do this, but when you take away federal regulation there is a potential that state laws kick in.”
Additionally, Smith anticipates that more employees who are exempt from federal law will explore alternative legal action, arguing that their dismissals were discriminatory because of issues, for example, of race, gender or disability. He expects we will see “quite a bit of this happening”.
Burke agreed that other avenues will be pursued by people if they can’t bring unfair dismissal claims. “They will dress up claims, particularly under discrimination and workers compensation,” said Burke. “So those areas will certainly increase for lawyers if people can’t find protection in other areas.”
In this way, the potential changes “will not mean the death of employment law”, they will only mean lawyers are looking at different claims. “They will be moving from bread and butter unfair dismissal claims” to those claims they did less of before, said Burke.
The Government’s industrial relations reforms would further restrict the power of unions in the workplace.
Significantly, the Coalition has promised to introduce new laws that would restrict union access to the workplace and ensure their compliance with reasonable requests regarding where discussions between unions and employees could take place.
Such laws would effectively override a recent court decision that determined unions could rely on state laws in order to enter worksites where all employees were on AWAs. They would also negate another case which found employers could not prevent unions from entering workplaces and interviewing employees at their workstations.
Lawyers will be busy digesting the new legislation as it comes in, said Harmers senior associate Smith. But they will also have to look at what the union movement comes up with in anticipation and in response to any wave of new legislation. He recalled that in 1996 when the Coalition introduced new legislation, seemingly unintended opportunities were found.
“There were areas that unions could use to show people had been treated unfairly or advance industrial claims and strategies. Things were sometimes turned around by creative applicants. There will always be some potential scope for this and it will be interesting to see what people try and come up with this time,” Smith said.
A lot of businesses would be well advised to carefully consider how these changes may impact upon them, he continued. They need to think about whether applicants and unions are able to develop new strategies to run alternative claims in different states or jurisdictions if they can’t do anything federally.
Abbott Tout’s Burke suggested “lawyers need to be more conscious of work streams and more attentive to their clients’ needs”.
In an ironic twist, Prime Minister Howard’s hope of a single, uniform national workplace relations system remains out of reach for the moment. Both NSW and Queensland have indicated they would fight any attempt to override their industrial relations systems, while Victoria was the only state open to a national regime.