In a controversial but very relevant article in the Sydney Morning Herald Grace Collier argues the Fair Work Act and the activities of the Fair Work Commission are creating significant problems for employers.
Collier argues the Fair Work Act dramatically increases the opportunities for some employees, encouraged by a growing number of IR lawyers, to make doubtful claims as the system is heavily loaded against the employer. The article says there is about a 4 per cent chance of the matter actually ending up in arbitration with most matters being settled at ‘Compulsory Conciliation’.
‘There is a ‘‘reverse onus of proof’’ for these claims, which means you won’t have to prove that you do have a case; your employer will have to prove that you don’t.’
The article also points out employees can make unsubstantiated claims at the mediation hearing and not be properly cross examined or the claims checked.
‘In the first full reporting year of Fair Work Australia, 37,262 people lodged individual cases, mainly consisting of unfair dismissal and general protection matters. In the year ending 2009, before Fair Work, only 17,658 people lodged similar cases.’
Essentially Collier believes that most employers settle the claim for unfair dismissal, constructive dismissal or unlawful dismissal with what she terms “go away” money. This is, it is argued, cheaper and more certain than the lottery of the Commission processes.
The article is particularly scathing on the legal profession who Grace Collier points out can work on the equivalent of a fee-for-success basis in that inevitably the employer will make a payment regardless of the merit of the case.
The other view
The problem with reading one article is that it can paint every lawyer and every employee with the same brush. Comments on the effectiveness of the system need to also look at how many cases are genuine – probably the great majority; and how many employees with a genuine grievance miss out because they do not really know their rights. In the end there are 11 million workers in Australia and less than 50,000 unfair dismissal cases.
The article draws attention to the need for all employers to ensure they properly manage their workforce and to keep good records of how they do this. It also presents a challenge to employers who believe they have done the right thing to stand up for themselves in the Commission.
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