Pub­li­ca­tions

The com­plex­i­ty of employ­ment law in Aus­tralia has no future in the future’

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…