Proposed IR reform in the firing line

HUMAN resource managers will find dismissing staff, even for economic reasons, more difficult if the Labor Government moves ahead with its industrial relations agenda, according to industry groups and industrial lawyers.

Buried within Labor’s draft Industrial Relations Reform Bill 2002 is a new requirement that an employer is obliged to notify the relevant union and hold discussions each time there is a change to an employee’s work circumstances, including termination. This applies even where employees are not members of the union unless the employees notify the employer. But under section 172 of the Draft Bill there is no provision for a union member to notify the employer not to hold discussion with the union.

The Government also plans to extend the definition of redundancy to include the ordinary and customary turnover of labour.

“This is a dramatic departure from the standard established by Industrial Tribunals across the country,” the Chamber of Commerce and Industry of WA said in its Government submission.

“This will mean businesses that shed labour following seasonal peaks, for example, will by definition have made these employees ‘redundant’.

“This has the potential to trigger demands for severance payments which are completely unwarranted.”

The Master Builders Association of WA was equally cold in its submission, saying the changes would devastate the building sector.

“Given the building industry awards are based on ‘daily’ contracts of hire, this provision presents enormous practical implications for contractors,” its submission to Government says.

“If this provision is passed, contractors would be required to notify the Construction, Forestry, Mining and Energy Union on almost a daily basis of building workers being terminated as their work on a given project comes to an end.”

An employer will also be required to consult with the union prior to re-locating a building worker from site to site, although working for the same company.

“Given the thousands of service trades workers in the building industry who install services on construction sites and maintain these services, this provision is unworkable and clearly has absolutely no regard for how work in the building industry is structured,” the MBA says.

“It really is an arrant nonsense and must be scrapped.”

Combined with other obligations on employers, industry groups feel changes would give excess to a database of potential recruits.

“Coupled with the expanded ‘right of entry’ provisions, this seems to be a device aimed at providing the unions with an ongoing stream of ‘leads’ or business opportunities for them to pursue,” the CCI says.

“Inevitably this will create disputes as unions opportunistically try to use this to gain new members.”

The MBA and CCI also believe the provisions run counter to the Freedom of Association provisions.

“The employer would be required by law to notify the union about employees who are non-union members, yet the Freedom of Association provisions require an employer not to prejudice an employee by being a member or not being a member of a union,” the MBA says.

MBA chief executive Michael McLean believes employers could be prosecuted for breeching the Freedom of Association provisions if they adhered to the Government’s requirements.

The industry body believes advising a union about non-union members could arguably be represented as an action which prejudices the worker by subjecting them to union pressure to join the union.

Deacons lawyers workplace relations senior associate Alistair Salmon said the unfair dismissal provisions would become the most horrendous in Australia.

“It’s pushing the limits of unfair dismissal laws and it’s going into areas that unfair dismissal laws have never been before,” he said.

On the positive side, Mr Salmon believes there would be a monetary spin-off for labour hire firms. This was because companies would prefer to avoid the potentially costly and time consuming problems that unfair dismissal laws have created, he said.

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