The 6 Big Issues (as we see them) for 2012 ⁽ⁱ⁾.

We want to thank you for your continued support during 2011. It has been a pleasure working with you on the many and varied workplace issues over the last 12 months.

For some of you it was a challenging year dealing with the big changes felt at the workplace level brought about by the Fair Work Act, NES, enterprise bargaining and modern award application. There also continue to be big challenges for many workplaces as a consequence of the world’s increasingly serious financial problems, and, their impact on our Asian neighbours and Australia’s so-called two speed economy.

Additionally, in this context, we seem to be hearing, in some industry sectors, muffled calls from union representatives for a return to the lazy days of wage leap frogging across award classifications on the basis of comparative wage justice arguments, without any serious consideration of linking those wage increases to genuine productivity trade-offs. We think that while these calls will get louder and more desperate as things get tougher, Fair Work Australia will quickly obliterate any chance that centralised wage fixing will ever be allowed to return to influence employee wage expectations, or, to underpin wage principles set in concrete which strangle the gains made since the Hawke/Keating Government shone the industrial relations spotlight on productivity enhancement through enterprise bargaining. ⁽ⁱⁱ⁾

Putting to one side these looming (and fairly serious) workplace issues, to finish the calendar year we thought you might also like a very brief overview of our predictions for 2012. We suspect, based on our industrial relations experience since 1987, knowledge of the players involved and recent media releases, six of the more important workplace and labour law issues for employers to grapple with during 2012 will be:

1. New enterprise agreement content – employee representatives will be wanting to discuss security of employment clauses (no contracting out and no forced redundancies); compulsory arbitration for all workplace disputes (which will, amongst other things, limit the right of employers to lock employees out and/or seek a suspension or termination of protected industrial action); maintenance of wage relativities against future superannuation contribution increases; direct flow on of national wage case award rate increases into enterprise agreements without any change to existing working conditions; and, some social, green-tinged items such as the right of casuals to move to full time employment, and, a renewed push for a 35 hour week;

2. General protections – claims of adverse action will substantially increase during 2012. There will be a continued push by trade unions to gain greater protection for workplace delegates and their conduct under the general protection provisions of the Fair Work Act. Employee representatives will also be wanting more workplace rights created and inserted in modern awards or enterprise agreements, such as a total prohibition on workplace bullying or harassment, or, a charter of employee rights, to enable enforcement of those new rights under the general protection provisions of the Fair Work Act;

3. National discrimination laws – there is some talk that the new federal Attorney General should be thinking about harmonised national discrimination laws to put an end to the hotch potch of State and Federal inconsistent laws which have not kept up with workplace changes in areas such as cyber bullying, social media workplace and after work hours harassment;

4. Employee or contractor – there are calls from the judiciary for a definition of contractor to be inserted in the Fair Work Act and other associated pieces of legislation to give parties more certainty about the real relationship between them. The recent decision of Elazac and Shirreff ⁽ⁱⁱⁱ⁾has shown how an employer can come unstuck despite its best intentions;

5. Fair Work Act and modern award variations – there will be pressure brought to bear on the government to support variations to the Act and modern awards to reflect more of an industrial and workplace agenda advocated by the ACTU. Some of these matters were aired at the recent ALP conference. There may also be Fair Work Act applications made by employee representatives to vary modern award rates on the basis of principles such as work value, in much the same way some awards will be varied in 2012 to reflect the substantial wage increases funded by the government in the gender equity/equality pay case. We also think there will be calls from some quarters for new rules in the Act to allow greater scrutiny by Fair Work Australia of the conduct of parties engaged in good faith bargaining and, additionally, some form of hand-brake on employer response action to protected industrial action; and

6. The practical impact of the harmonised OH&S laws on workplaces operating in the States (such as New South Wales) where the governments have agreed on the 1 January 2012 implementation date. Discussions around many boardroom tables are likely to have a change in focus as directors and other “officers” come to terms with their new due diligence obligations.

We will be keeping an eye on these issues and more as the New Year begins and will keep you updated with any significant developments.

We trust you will have happy and safe break and we look forward to updating you in the New Year. 

More information If you are interested in more information about the developments discussed in this e-bulletin, please contact:

Brad Swebeck, Partner, Workplace Relations Phone +61 2 9293 5450 Fax +61 2 9293 5250 Mobile +61 (0) 411 234 063 Email This e-mail address is being protected from spambots. You need JavaScript enabled to view it       Sarah Jones, Partner Phone +61 2 9293 5420 Fax +61 2 9293 5220 Mobile +61 (0) 421 051 299 Email This e-mail address is being protected from spambots. You need JavaScript enabled to view it       Justine Matthews, Partner Phone +61 2 4907 5600 Fax +61 2 4907 5633 Mobile +61 (0) 434 476 320 Email This e-mail address is being protected from spambots. You need JavaScript enabled to view it

⁽ⁱ⁾ If a little knowledge is dangerous, where is the man who has so much as to be out of danger (T.H.Huxley).

⁽ⁱⁱ⁾ Some commentators have suggested that one can measure productivity simply by looking at how much more output can be achieved with less human input or overtime cost. We believe there is more to measuring workplace productivity enhancement than using a simple rule of thumb.
⁽ⁱⁱⁱ⁾ [2011] VSCA 405 (1 December 2011).

This publication represents a brief summary of the law relating to the issues raised and should not be relied on as a substitute for professional advice. Specific legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred as a result of reliance on this document by those relying solely on this document.