22 June 2016 The complexity of employment law in Australia has no future in the 'future'

By Warwick Ryan, Partner

When we engage staff now we do so in an environment where uncertainty and diminishing employment security is the new norm for all.  This reflects the greater competition facing businesses both from technology and the globalised environment. Yet it is interesting how so many people believe that staff can be sheltered from such uncertainty. Certainly the 170,000 Kodak staff who lost their jobs in the space of 3 years, would testify that change can be uncompromising – and, with the benefit of hindsight, they might also say that acceptance of its inevitability (and therefore preparation for it) is fundamental.

All this is looming at a point in the Australian business narrative where we have never seen so much regulation sitting around the simple relationship between employee and employer: WH&S, workers compensation, anti-discrimination, pay and conditions (the Fair Work Act and the awards), unfair dismissal and adverse action, bullying etc. This plethora of legislation complicates the simple matrix of relationships within workplaces:

  • where, once, disputes between employees (whether on the same level or between the manager and their report) would have to be worked out between them within the normal framework for resolving human conflict, there are now increasing legal options for disgruntled employees to resolve what are often personality disputes

  • employers are left increasingly catatonic in dealing with problematic staff - too often, the complex legislation leads to business retaining employees who should be let go.  This is ironic given that companies can afford less and less to retain underperforming staff and are even less able to allow misbehaving staff to expose the business to risk.  

Adding to this entanglement for business are the tribunals which make decisions in relation to the labyrinth of rights – these tribunals are shifting responsibility for poor employee behaviour onto the employer. 

Take a recent example where disgraceful and offensive behaviour by a senior male staff member towards female staff members at a Christmas function was excused and blamed on the employer for providing alcohol…

These tribunals (with the Fair Work Commission leading the charge) are expecting and demanding employers to treat their staff as children or moral imbeciles who have little or no accountability for their actions.  

This approach surely cannot be excused or sustained when the market is demanding increasing levels of productivity and initiative from all of us - managers and staff? No – the massive disruption posed by technology on the continuation of so many roles in the workplace will bring irresistible pressure to bear on current structures – we are facing a tsunami of change in the way people work and what jobs are available to them. This is coming, and with Kodak 20:20 vision, we should be preparing for it:

Australia needs to entirely re-think how we regulate the employer/employee relationship in this country - not to undermine worker's rights - but to ensure that we create and nurture all the potential jobs of the future

However, it's going to get a lot uglier before any Australian Government (of whatever description) sees itself as able to introduce more flexibility into employment arrangements - witness the current 'hoopla' over the proposal to reduce Sunday rates only from 175% to 150%. We just have to hope it is not left too late - because those who don't see it coming, or who refuse to adapt in time, risk becoming "Kodak economies" – mere shadows of their former selves…

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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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