The Final Report by the Productivity Commission (PC) was released yesterday. As expected, the PC did not recommend a complete overhaul of the workplace relations system.

Some of the key recommendations from the report are:

• Sunday rates should be aligned with those on Saturday, creating a “weekend rate”, for each of the hospitality, entertainment, retailing, restaurant industries.
• A new body, the Workplace Standards Commission, should be created to assume the wage regulation function currently performed by the Fair Work Commission (FWC).
• Maintaining minimum wage rates but introducing complementary policies that provide in-work benefits, such as wage subsidies for lower paid employees.
• Effectively a return to the “no disadvantage test” in assessing the terms of an enterprise agreement or an individual flexibility arrangement made to vary the terms of an enterprise agreement.
• The introduction of a new form of employment arrangement, the “enterprise contract” which is intended to be the middle ground between an enterprise agreement and an award. The “enterprise contract” could be used to enable variations to the award which suited the circumstances of an individual enterprise.
• Rectifying problems with the Fair Work Act 2009 (Cth) (FW Act) which lead to unnecessary compliance costs and poor outcomes. For example, by allowing the FWC wider discretion to overlook minor procedural or technical errors when approving an enterprise agreement, so long as it is satisfied that the employees are not likely to have been placed at a disadvantage because of an unmet procedural requirement (at this time, any failure to meet the strict procedural requirements surrounding enterprise agreement-making means that the parties will generally be required to begin the agreement-making process again).
• Making it unlawful to misrepresent an employment relationship as an independent contracting arrangement where the employer could be “reasonably” expected to know otherwise (the current test is one of “recklessness”).
• Enabling employers to engage in more graduated forms of protected industrial action in response to employee claim action – at this time an employer’s only permitted response action is to “lock out” employees.

In our practice, general protection claims are becomingly increasingly common. Interestingly, there were several recommendations made by the PC in relation to this class of claims. Amongst other things, the PC recommended that the FW Act should more clearly define the meaning and application of “workplace rights” which would be a welcome change for many employers.

To discuss this further, or for more information, please contact:

Joanna Bandara
Associate
M +61 434 926 919
T +61 3 9611 0196
jbandara@sladen.com.au

Louise Houlihan 
Principal
M +61 409 835 809
T +61 3 9611 0144
lhoulihan@sladen.com.au