Fair Work review should focus on adverse action, unfair dismissal protections, workplace legal expert says

The Fair Work review panel should investigate adverse action protections and the unfair dismissal claim process in order to shore up protections for small businesses, one expert has said as a Government-appointed group prepares to scrutinise industrial relations laws.

The panel, which was announced yesterday by industrial relations minister Bill Shorten, will be headed by Reserve Bank board member John Edwards, workplace law guru Ron McCallum and former federal court Judge Michael Moore.

Business groups including the Australian Chamber of Commerce and Industry and the Australia Industry Group have welcomed the panel, but have criticised its terms of reference. Opposition workplace relations spokesman Eric Abetz has also criticised the lack of reference to subjects including productivity and flexibility in the workplace.

Workplace law expert Peter Vitale told SmartCompany this morning the review needs to consider two key areas – adverse action protections and unfair dismissal provisions.

“Currently, these provisions make it too easy for claims without merit to be made and progress. I think small business in particular needs more of a fighting chance in defending those cases.”

“In particular the small business unfair dismissal code needs to be reworked, and we need to be able to get more certainty for businesses around the ability to defend marginal claims without merit.”

Vitale says he is disappointed by the review’s limited terms of reference.

The review plans to investigate the creation of a clear and stable framework of rights and obligations, enterprise-level collective bargaining, the promotion of fairness at work, effective produces to resolve grievances and disputes, and the unfair dismissal protections.

The review will also consider the creation of a new institutional framework, and any differential impacts across regions and industry occupations.

“I think the terms of reference are quite limited, and really just focus on a lot of the collective bargaining aspects of the legislation,” Vitale says.

“They’re also focusing on the effectiveness of the dispute resolution procedures. But it seems to me that small businesses wouldn’t necessarily have a lot to do with those aspects of the legislation.”

Vitale says the panel should be careful that it doesn’t focus too much on the big end of town.

“Obviously, big business is concerned with the issues of enterprise bargaining and the whole question of arbitration.”

“But that shouldn’t stop the panel from going into areas that affect small businesses all the time, such as unfair dismissal. That would be a pity if they missed out.”