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Labor’s proposed unfair dismissal regime not escaping criticism

Labor’s proposed unfair dismissal regime not escaping criticism

THE ROLLING back of WorkChoices is at the top of the agenda for the new Government, with the broadening of unfair dismissal laws being one of the key issues. But some of the proposed reforms…

THE ROLLING back of WorkChoices is at the top of the agenda for the new Government, with the broadening of unfair dismissal laws being one of the key issues.

But some of the proposed reforms have been met with mixed responses from lawyers in the field.

The majority of the ALP’s proposed workplace changes, including the proposed broadening of the application of unfair dismissal laws, are intended to be put forward in a Bill in 2009, which is to take effect in early 2010.

David Cross, a partner in Deacons’ workplace relations practice group, explained that if the changes go ahead as planned “pretty much any employee can bring an unfair dismissal claim, so long as they are covered by an award or workplace agreement, or they earn less than the threshold amount — subject to statutory qualifying periods”.

In an effort to streamline the path of these claims through the system, however, the government has proposed a new fast-tracked procedure for handling them, a procedure which Cross believes could be problematic.

“The claims will be handled very differently and frankly in a way that I think will need pretty extensive revision because it’s hard to see how it’s going to work in practice,” he said.

Under the proposed system, all claims will need to be made within seven days to a body called Fair Work Australia who will convene a conference for all the parties involved.

There will be an initial attempt to resolve the dispute through conciliation, and if that’s unsuccessful, a hearing will take place and a decision will be made by Fair Work Australia, all in the same conference. According to Cross there won’t be any formal legal submissions, no opportunity for parties to cross-examine and probably no automatic right to legal representation.

Cross’s concern is that in the name of efficiency and cost cutting, the legitimacy of the process will be compromised. “People in this country expect to get a fair day and a fair hearing … If they roll up to a room and it’s handled in a peculiar way … with a bloke who’s trying to do two things at the same time — conciliate but then also make a binding decision on you [without] following the hearing rules that you are “accustomed to in any other kind of curial process … That seems to me to be fraught with difficulty.”

He added: “This is interesting because one of the things that’s dogged the unfair dismissal jurisdiction at a federal level has always been a concern about the inconsistent approaches by the people who made the decisions. And also, frankly, a feeling that’s what’s going on isn’t really legitimate, because it’s not being handled in a suitably serious and legitimate way.”

According to Cross, it is all very well to say things should be done cheaply, but these things work quicker if you stick to the tried and true processes of dealing with disputes and you don’t cut corners, he said. “It’s the cutting of the corners that has brought the thing undone in the past.”

Cross said the changes could present constitutional issues “in terms of the exercise of apparently judicial power going on within a non-judicial framework”.

Gareth Jolly, a partner in Minter Ellison’s human resources and industrial relations division, remained more neutral on the topic. He claimed that the fact that “lawyers wouldn’t be permitted at the conference … will ultimately have an effect on the work that lawyers do, assuming that the change is ultimately carried into effect. At the moment it’s only a policy announcement”.

Cross believes the fact that a lot of these changes aren’t due to come into effect until as late as 2010, is in itself surprising.

“Much of the credit for the government’s victory has been claimed by the people who were so anti-WorkChoices, [so] it makes you wonder whether the government’s going to be allowed to leave so much of the WorkChoices architecture in tact for that length of time,” he said.

Jolly, on the other hand, did not appear to see the delay as unreasonable, and said: “it will be a process that will allow for full consultation over the changes.”

Other amendments, including the abolition of Australian Workplace Agreements, are to be put forward much earlier under a separate bill. Provided the government gets its way in the senate, the ‘Transition Bill’ will be passed and will come into effect early next year.

For a complete rundown on all of the Rudd Government’s proposed workplace changes see our feature story by Murray Kellock on page 21.

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