12 September 2013 The Liberals are in – implications for employers and employees

By Warwick Ryan, Partner and Laura Sowden, Solicitor

In Brief

The Liberals are in and Tony Abbot has promised to "restore the balance back to the sensible centre" in industrial relations by not replacing, but improving the current Fair Work Act. What does this actually mean for employees and employers? From the Liberal Party's proposed policies we feel that employers control over certain aspects of employment will increase, the most significant being a greater capacity to defend unfair dismissal claims, more opportunities to use individual flexibility arrangements and an increased focus on using internal complaint processes in instances of bullying.

Below we outline potential changes that may be introduced and their practical implications.

  • Improving the Fair Work Commission and considering the introduction of an independent appeal jurisdiction. It is anticipated any such appeal jurisdiction would be in between the Fair Work Commission and the Federal Circuit Court or Federal Court. This may increase the ability of employers to defend unfair dismissal claims and increase the predictability of these cases.
  • Ensuring Individual Flexibility Arrangements can be used even where there is an enterprise agreement. Employers should take this opportunity to review their enterprise agreements and ensure they are leveraging flexibility arrangements to their full capacity.
  • A paid parental scheme (paid by the government) providing 26 weeks paid parental leave to mothers which is tied to their remuneration and not tied to the minimum wage. Individuals would also receive superannuation during this period. You may want to consider the implications of that scheme on any policy you currently have in place.
  • Regarding workplace bullying the Liberal party has proposed that before employees can access the Fair Work Commission via a stop bullying order they must attempt to resolve the issue through mechanisms in their workplace. We see the addition of this new step to the bullying complaint process as an opportunity for employers to mitigate potential bullying claims early. Employers can enjoy some protection by reviewing their existing internal complaints system. If one does not exist, this is the ideal time to implement an internal complaints and investigation procedure.
  • Restricting the rights of access of industrial bodies to workplaces. This may involve removing the right of entry to hold discussions and replacing it with something like a right of entry once an employee requests the industrial representative to enter.
  • Asking the productivity commission to undertake a review of the Act, which may lead to amendments to the Act.
  • Re-establishing the Australia Building and Construction Commission to administer a national code and guidelines in an effort to tackle undesirable industrial association action in the building industry.
  • Stricter reporting rules for industrial associations to ensure members' funds are not being misused. The suggestion is that by applying corporate regulatory standards this will assist in ensuring transparency of expenditure and less misuse of funds. The Liberal Party also envisages faster investigations in allegations of misuse. Creating a Registered Organisations Commission which will have statutory powers to enforce the law.
  • Tailor services provided by the Fair Work Ombudsman for small business and ensure there are increased resources to help small business.

In summary according to official Liberal policy it is not likely that employers should expect massive changes which are difficult to adapt to, but rather some minor changes with which compliance will be relatively easy.

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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