The Fair Work review in detail – putting the microscope on both the good and bad recommendations

While businesses have slammed the Fair Work report for neglecting a key opportunity to address deficiencies in the industrial relations system, experts suggest SMEs might benefit from some of the recommended technical changes in the report.

And even though the Federal Government isn’t set to hand down its recommendations for a few weeks, workplace law experts say the report isn’t all bad news.

“The report really has to be prefaced on the fact that although there are some potential downsides, there are some potential upsides as well,” says Hall & Wilcox legal expert Karl Rozenbergs.

“At this stage, however, it’s still early days – we’ll need to see what the government does in its response to see if there are any opportunities for some substantial change.”

Paul Gollan, professor of management at Macquarie University, says while the report recommends some interesting changes, it won’t actually matter until some cases reach the tribunal.

“It’s going to take some time for precedent to be set. For small business, even if some recommendations are taken up, there’s a degree of uncertainty here.”

The Fair Work review is an extensive report. While there’s sure to be more debate about the report over the next few weeks, we’ve put together a review of what’s in the report – taking the good with the bad.

Here are some of the key recommendations you need to know about:

Unfair dismissal

Take heart – while the review recommends that the time limit for lodging unfair dismissal applications be extended to 21 days, there’s actually something here for business too.

Rozenbergs says the time limit for lodging a general protections claim relating to a termination of employment is now set at 21 days, as opposed to over 40.

“So they’re taking a little bit away, but they’re also recommending less time for that.”

But there’s also something else here – a recommendation that Fair Work can cancel an application in certain circumstances, including when an applicant fails to attend a proceeding, or where it fails to comply with directions or orders relating to the application.

General protections

There’s been less movement in overall recommendations for general protections. Business wanted them gone altogether, and that hasn’t happened. The tighter rules around applications are all that’s recommended.

Individual flexibility agreements

There’s some good news and bad news here.

While the panel has recommended that the Fair Work act be amended to permit an individual flexibility arrangement as part of the “better off overall” test, and that enterprise agreements include the model flexibility term as a minimum, there’s some more regulatory burdens.

For instance, when an employer makes an IFA, they have to notify the FWO of the commencement date, the name of the employee, and the award they are under.

Greenfield agreements

The review has recommended that a form of arbitration be available if parties aren’t able to reach an agreement within a suitable time frame – something businesses have been concerned about.

But there’s also a caveat here, as business is concerned that one recommendation says FWA be given the power to initiate compulsory conciliation, including in greenfield negotiations.

Protected action

Businesses have been concerned over the fact that protected action can begin before bargaining can start. The review has taken the view that a ballot for action should only take place after bargaining has started, or because a majority support determination has been obtained.

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