Union says small business unfair dismissal protection should be scrapped in Fair Work review

The Australian Council of Trade Unions is putting more pressure on the Government to increase protection for workers, saying in a submission to the Fair Work review that small businesses should not be given special treatment with regard to unfair dismissal laws.

That submission comes alongside two others from the Pharmacy Guild and the Financial Services Council, which have warned the Government against increasing regulation – the Guild in particular warns more than half of pharmacies are reducing staff numbers.

The ACTU has said in its submission that small businesses should not have protections from unfair dismissal laws.

Currently, the Fair Work regime is designed such that dismissal cannot be unfair if it made by a business with fewer than 15 employees and that business has followed the Small Business Fair Dismissal Code when dismissing the employee. The union wants that protection and the Codes scrapped.

It also wants the right to request flexible work arrangements should be extended to more workers, including parents of adult children with a disability, workers over 55, and to all carers.

Other recommendations include changes to the way agreements are made, including a broader range of issues such as job security, right of entry and unfair dismissal, while flexibility clauses will no longer be necessary.

The submission comes alongside the ACTU’s own research, which shows 57% of the 2000 respondents believe any Fair Work changes should give employees access to more reliable work.

“There is no public mood to hand over increased power to employers, but more importantly, there is no credible evidence or rationale in the way the Fair Work Act is operating to justify this either,” ACTU secretary Jeff Lawrence said in a statement.

In the submission, the ACTU said the current unfair dismissal laws are so weak “that they are unlikely to act as a deterrent to hiring, as employers often claim”.

“There are a number of practical problems with the current unfair dismissal regime. First, the 14 day deadline for filing claims is too short…the deadline should be extended to 60 days”.

Not only does the ACTU want businesses of all sizes to abide by the same laws, but it also wants to remove exemptions for the building and construction industry, by repealing the Building & Construction Industry Improvement Act.

More flexibility is also on the agenda, with the union saying it wants the right to request flexible work hours extended.

“We submit that all workers who care for or support (or expect to care for or support) a person who reasonably relies on them for care or support should have the right to request flexible work arrangements.”

“The employer should have a duty to consider the request and reasonable accommodate the employer’s needs in a bone fide way. There should be a right for all employees to review the employer’s decision in FWA, regardless of the industrial instrument that covers them.”

The ACTU has been contacted for clarification around the types of workers who would be able to request more flexibility, but a response was not available prior to publication.

However, after publication a spokesperson confirmed the ACTU is seeking a reduction of the qualifying period before a new employee is protected by unfair dismissal to six months, along with abolition of the Small Business Dismissal Code. 

Meanwhile, the ACTU wants the Government to play a more “balanced” role in intervention, while it also wants an overhaul on sham contracting laws with increased penalties.

“The high incidence of sham arrangements in certain industries suggests that a targeted approach to regulation and compliance that does not disturb legitimate arrangements is appropriate.”

There has been a growing number of incidents where employers have been classifying workers as contractors rather than employees to avoid paying certain penalties.

The recommendations come as public debate is continuing to grow over the Fair Work act, with business leaders and prominent executives saying the legislation is holding back productivity – some are now advocating the eradication of penalty rates and other labour costs.

But Lawrence says Australian businesses have nothing to complain about.

“Our submission will clearly demonstrate that the contrary to the myths being perpetrated by employers, the Fair Work Act has been irrefutably good for workers and good for the economy.

Meanwhile, the Pharmacy Guild’s own submission has suggested the industry is hurting, with 52% of pharmacies reducing staff, 45% decreasing overall hours offered to employees, and 62% suggesting a decrease in the use of casual employees.

The Financial Services Council has also warned that competition among super funds will decline unless provisions that make SMEs use “default” funds are scrapped.

“This unnecessarily restrictive regulatory framework has a negative impact on the ability of employers to administer their compulsory superannuation obligations,” the FSC said in its submission, according to The Australian.