The High Court of Australia’s decision in the Qantas outsourcing case[1] has been widely reported. But both the scope of the decision and the key takeaway have potentially been misunderstood.
How do you (dis)prove a negative presumption about your reasons?
The real issue in this case, as in most adverse action cases, was why
This instalment of our series on the Closing Loopholes Bill considers new measures aimed squarely at union empowerment.
The Bill mandates rights for union workplace delegates that must be included in all Modern Awards and future enterprise agreements. As a minimum, these rights will be to:
Most recent commentary on the recent High Court decisions in Jamsek and Personnel Contracting suggests that the Court has confirmed the primacy to be given to the terms of the written contract when determining the nature of the relationship between the parties. Whilst that is a fair observation, there is much more to the story.
Whether there will be a “Great Resignation” in Australia has been fiercely debated for weeks. But whatever the different viewpoints, stabilisation, recovery, and growth in 2022 will be critical for most businesses. Timing is everything – the need for growth coincides with widespread fatigue and burnout among the workforce, ongoing uncertainty associated with the new
The Prime Minister has recently made an announcement about the process of “re-opening” the Australian economy, and a critical part of that being retraining and investment in skills development. Chris Gardner has also touched on the importance of HR in a crisis. This gave us reason to ask whether, even though some employers are going
“It has become increasingly difficult to make
Their high profile nature means it is timely for big business to re-evaluate their restraints of trade to make sure they are effective –
The target of the changes seems to be enterprise agreements that are voted on by one group of employees, but have the potential also to cover a much broader group, or to cover a similar group who will be employed in a different geographic location. The Shadow Minister referred to these situations as employers “gaming the system”.
However, we note that the Fair Work Act already contains a number of safeguards to prevent “gaming the system”, including that agreements are genuinely made, that employees who vote to make the agreement are “fairly chosen”, and employees are not coerced to vote or not vote for an agreement.
While we do not have the benefit of any detail (such as a draft Bill) – there are some things to be said about the potential effects of the foreshadowed changes.
The concept put forward by Shadow Minister O’Connor in his speech would allow an agreement that has been made, to be challenged and potentially reversed on the basis that the employees who made the agreement are not “representative” of those who will be covered by it.
This raises a number of important questions including:
These questions may not be answered unless and until the provisions are enacted and tested by the many varied situations real life throws up.
Our initial impression is that any amendments that allow agreements that have been made to be effectively “undone” could cause enormous problems that go well beyond the immediate issue being addressed. This exemplifies the danger of focussing on first order consequences, at the expense of equally (sometimes more) important second and third order consequences. By trying to plug a perceived gap in the legislation, these amendments have the potential to open up a new form of “litigation sport” – where agreements that have been made are subject to lengthy legal challenges and then undone much later down the track. There are many industrial reasons – which have nothing to do with the supposed problem being addressed – which might provide motivation for such challenges.
Continue Reading Proposal to outlaw “unrepresentative” enterprise agreements – when will an enterprise agreement be undone?
The gig economy is only one of the reasons that workers of the future will not have close connections with one employer or business – another is the movement towards arranging their life so that they spend substantial periods of time not working at all.
The trend towards regularly spending long periods of time away from the workforce is highlighted in an article by Christine Long in the Sydney Morning Herald considering people who only work a few months of the year, and the renowned demographer Bernard Salt’s column in The Australian that looks at changes that millennials will bring to the workforce.
Continue Reading The future of work: managing a workforce that is away half the year