23 February 2016

Guest Post: More changes ahead for Australia's IR landscape

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Workplace relations ultimately impact our productivity, resilience and effectiveness as a nation. The role of Workplace Relations practitioners is central to understanding, implementing and managing the best available opportunities for their organisations
Akolade recently caught up with Lisa Burrell, General Manager – Workplace Relations from the Victorian Chamber of Commerce and Industry ("Victorian Chamber") to discuss all things workplace relations, including the much anticipated release of the Productivity Commissions review into the Workplace Relations framework, and what it may mean in practice for Australian businesses.

Q: We are working in an evolving and continuously challenging environment. What do you see as the main challenges for Workplace Practitioners over the next 12-18 months?

In the World Economic Forums 2015-16 Global Competitiveness report, Australia doesn’t place in the Top 100 on key workplace relations indicators which included hiring and firing practices. While this is no surprise to practitioners within the system, it reflects the stark realities of some of our current constraints.

The overarching and continuing challenge for employers is no doubt delivering results and initiatives, whilst managing compliance and risk in a very complex system. Within this, the key upcoming challenges for practitioners as I see them are:

  • Planning for, and managing legislative changes that may come out of the next federal election. In the current context and climate, we would expect to see workplace relations as a fundamental part of the upcoming federal election platforms for both parties.
  • Continuing to balance and manage flexibility issues that are part of the needs of a contemporary workplace, within an overlay of expanding legislative coverage and protections.
  • Maintaining employment engagement, productivity and skill sets as our economy continues to evolve and consumer habits change. More and more businesses may be experiencing both growth and decline across separate areas of their business and this will continue to present a key management challenge.

Q: The Productivity Commission report was released late last year and is currently with the government for review. What are some of the most significant changes that may come out of this?

We ultimately saw some hits and misses for Australian business within the report. As with any reports of this nature, the challenge and opportunity presented by this will now be subject to legislation being put forward and passed by government.

The Victorian Chamber welcomed a number of the final report’s recommendations, including:
  • Aligning penalty rates on Sundays in hospitality, entertainment, retail, restaurants and cafes with Saturday rates.
  • Reform to curtail the cost impost of state based public holidays in addition to the national public holidays, as recently seen with the introduction of two new public holidays in Victoria.
  • An emphasis on substance rather than process for unfair dismissal claims and return of upfront assessments.
  • Recognition that the enterprise agreement approval process is overly rigid and requires reform.
  • Addressing ‘strike first, talk later’ tactics that subject business to costly disruptions. The PC has recommended prohibitions and restrictions that would limit this avenue.
  • The PC’s assessment that the costs involved with expanding existing portable long service schemes would not be justified

Other key areas that the PC final report proposed was reform to the Fair Work Commission appointments and structure, the introduction of “Enterprise Contracts” as a new type of employment instrument and changes to Greenfields agreements.

Q: What do you see as the lost opportunities within this report?

In our view, the report falls short in a number of areas.  A key area is the missed opportunity to provide key improvements to both unfair dismissals and adverse action ‘general protections’ claims.

The report does propose is reforms to limit the ability of frivolous and vexatious claims to proceed, and for greater powers to award costs against applicants. While these will improve the existing system, it does not go to the heart of the issues being faced by employers having to respond to an ever increasing volume of claims.
We were particularly disappointed that our recommendation to remove the newly introduced ‘complaints’ element of the expansive general protections regime was not adopted, despite our analysis revealing only one successful case in over six years attracting coverage under the expanded legislation. Conversely, business has had to contend with thousands of complaints, with the added complexity of a reverse onus of proof.  The ability for an employee to later lodge proceedings against a business if they have made a complaint – any complaint - is ultimately being used and abused.

While employers are seeing success if defending these claims, it obviously comes at a great cost to a business to go through lengthy court proceedings, and commercial decisions to settle are a reality. Unfortunately, as long as this legislation remains in place, it seems that the thousands of claims against employers and an ongoing rise in ‘go away money’ is set to continue.

The report also misses the opportunity to recommend crucial changes to restrict access to unfair dismissal claims, including for small business exceptions, high income earners and genuine redundancy situations. By way of example, large businesses will continue to have different groups of risk for high income earners, depending on whether or not they are award or enterprise agreement covered. Currently, an award covered individual could earn well over the general cap of $137,600 and be eligible, with some awards and agreements seeing individuals paid well in excess of this able to access the low cost arena of the Fair Work Commission.

Q: You will be speaking at and chairing the next Workplace Relations practitioners forum – what do you see as the key learning opportunities for attendees?

What many practitioners find as they progress within their career, is that it becomes increasingly difficult to find opportunities to bounce ideas off peers or colleagues – often because they are employed in one of the highest positions within their own organisation. Workplace Relations is also a relatively small field.

This conference is a unique opportunity to hear ‘the good, the bad and the ugly’, from industry leaders, who will share some of the challenges and achievements that they have been a part of. Based on feedback from previous Akolade forums, the strong networking connections formed amongst delegates have also proved well worth the investment for the challenges that inevitably crop up throughout the year – being able to test thinking, or ask how a particular project element panned out, can save a considerable amount of time and energy involved in having to work through all options individually.

Finally, there is a fantastic array of speakers at this years forum. I am personally looking forward to hearing from ‘behind the scenes’ from businesses who have been involved in key initiatives, are leaders in their field – and in some cases seem to achieve the limitation of disputes through successfully managing their industrial relations platforms, in what are highly contentious industries and situations. 

Lisa Burrell is the General Manager of Workplace Relations at the Victorian Chamber of Commerce and Industry. Lisa manages a team of over 20 Workplace Relations professionals, who are responsible for providing Vic Chamber services to both members and non-members including general advice, training and one-one consultancy and advocacy services across a range of HR and IR issues.
Lisa’s background includes work in a number of diverse employee relations roles having previously worked in public transport, tourism, state government and ASX listed companies, prior to joining the Vic Chamber in 2009.  Lisa holds a Bachelor of Arts (Health and Behavioural Science) from the University of Wollongong as well as recently completing post graduate qualifications in Law (Workplace and Employment Law) from Monash University.

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