[This article first appeared in The Australian on 8 July 2010]

COMMENT:

Fair work isn't working too well

8 July 2010

Grace Collier

The new one-stop shop industrial relations authority is a bureaucratic minefield.

If I hear the word fair one more time, I may suffer a brain fever. A fair system is what we were promised by Julia Gillard when she redesigned our workplace laws.

Indeed, the legislation is called the Fair Work Act 2010. But what is fair, who determines what is fair and to whom does fairness apply?

Does our system value fairness towards those convicted of producing and possessing child pornography above fairness towards their employer and the other employees?

Consider the latest decree from Fair Work Australia; food manufacturer Uncle Toby's has been ordered to pay 10 days' pay as compensation to its former employee Steve, a convicted child pornographer who was "unfairly dismissed" after his employer found out about his convictions.

In March, two union officials visited the company, advising they had received complaints about Steve, a casual employee of seven years, "harassing and stalking women in the workplace". Saying "the employees are not prepared to come forward because they are fearful", the union said: "You can't let him back on site." Steve was a listed sexual offender with work restrictions and reporting obligations to the police. Uncle Toby's workforce is one-third female.

In April, the local paper reported Steve had been convicted of eight offences, including harassment by post, stalking and making, producing and possessing child pornography.

No shifts were offered to Steve after this time. But Fair Work Australia found that for Steve, Uncle Toby's was a "procedural fairness-free zone". Even though there had been no contact with Steve since the convictions, the company was found to have dismissed him because his security access card was cancelled in June.

Fair Work Australia found that although the company had a valid reason for terminating Steve's employment, the process wasn't fair. The company was told it should have gone through a proper disciplinary process. It was also suggested the company could have suspended Steve until the outcome of any appeals Steve may have lodged against the convictions was known.

Uncle Toby's was ordered to pay 10 days' wages as compensation. Steve may have trouble spending much of it, because he is in jail.

I wonder if Uncle Toby's and its staff feel our system is fair.

"Big government industrial relations bureaucracy" is how our Prime Minister described the Workplace Ombudsman in 2007. The ombudsman is now part of Fair Work Australia. The office functions as the industrial police, mostly checking that employers are paying workers in accordance with their award and recovering back pay when they are not. The Howard government established the ombudsman in 2006 and since that time, the office has gone from strength to strength.

Since inception, the ombudsman has conducted 83,000 investigations, recovered $107 million in back pay for employees and dished out nearly $5.5 million in fines to employers. For business owners, not complying with the awards is now very expensive.

An ombudsman spokesman says more than 98 per cent of investigations are resolved without going to court, because the employer pays the amount the ombudsman says is owed to employees. Most employers will pretty much pay anything to make the matter go away. So is this fair or not? Ordinarily I would say let people have what they are entitled to. If only it were that simple.

The problem is sometimes employers find it difficult to determine what their legal obligations are with regard to paying staff. Sometimes workers do not neatly fit into an award's coverage. There can be two or more awards that could apply, or there could be doubt that any award applies.

In this instance, Fair Work Australia refuses to provide definite advice . It is up to the employer to guess, but if they get it wrong, look out. Unlike Fair Work Australia, the ombudsman is happy to form definite opinions about which award should be chosen and to collect back pay owed as a result of a mistake.

Understandably, employers feel this is unfair. If the ombudsman can form an opinion to prosecute, why can't this opinion be given up-front so the employer can avoid the mistake in the first place? After all, the ombudsman is part of Fair Work Australia, the one-stop shop we were promised by the government.

Fairness is defined in the dictionary as reasonable, unbiased and impartial. I'm just not feeling the fairness of our new system.

Grace Collier is an industrial relations management consultant.

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