Submission 167 Australian Council of Trade Unions Workplace Relations Framework Public inquiry

The effect of the relevant restriction on access to s352 of the FW Act is that an employee of a non-national system employee who sustains a work-related injury and is off work for a cumulative duration of 3 months in a 12 month period, does not have effective access to reinstatement on either a permanent or interlocutory basis. However, this restriction is in practice, limited to employees located in the States of South Australia, Western Australia or Tasmania who are not employees of national system employers.⁶⁸⁵

There does not seem to be any sound policy rationale for this outcome, which applies to a minority of private sector employees located in States that comprise less than a quarter of Australia’s total population.⁶⁸⁶ On both equity and regulatory simplicity grounds, the position described is most unsatisfactory and anomalous.

The effective solution to this anomaly would be to repeal or disallow the operation of Regulation 3.01(6) to restore the legal position to that which pertained prior to the Regulation being introduced and as reflected in judgments such as Lee v Hills Before & After School Care Pty Ltd.⁶⁸⁷ In Lee, Federal Magistrate Raphael dealt with an application by a child-care worker for a remedy following her termination by her employer whilst she was off work on workers compensation. The employer sought to have the matter dismissed on the grounds that the applicants temporary absence from work due to injury did not fall within the definition of “paid leave” and was therefore outside of the protection afforded by s659. In dismissing the application by the employer, His Honour considered in some detail the Termination of Employment Convention 1982 and the preparatory work of the Convention drafters:⁶⁸⁸

“An interpretation of s.659 based solely on the words of the statute reveals no exclusion of workplace injury from the term 'temporary absence for illness or injury'. That Parliament intended, in enacting the provision, to exclude employees on Workers Compensation from protection from dismissal would be anomalous with its obligations under the Convention, viewed in the context of the preparatory materials, which the Act embodies.  

Further, the fact that the category of employees absent due to workplace injury has not been excluded by Parliament, as empowered by the Regulations, indicates those employees should fall within the purview of the section. It would certainly be an odd result that a person who has an industrial accident and suffers injury could claim protection if he or she consequently claimed only sick pay, in which case it would be unlawful to dismiss him or her, but if she or he claimed Workers Compensation, upon the respondent's construction of the subsection it would be lawful to do so. Again the restriction of injuries to those not sustained in the workplace cannot be implied from a reading of the Convention papers or from the wording of the statute itself. An injury sustained outside of the workplace may entitle a worker to be paid through sick pay entitlements. An injury in the workplace would give a similar entitlement to be paid the "special form of sick pay" described by Deputy President Drake. If this interpretation of the phrase is accepted then there is no need to imply the absurdist distinction between the cause of injury that a definition that excluded Workers Compensation payments would require.“⁶⁸⁹

(Our emphasis)

Whilst it appears that the making of Regulation 3.01 sub-regulation (6) was intended to have the effect of excluding workers compensation from the protections afforded by s352 of the FW Act, the fact remains that its operation is anomalous and inconsistent with Australia’s obligations under the Termination of Employment Convention 1982. Moreover, given that the exclusion (by virtue of constitutional vagaries restricting the operation of the Division 4 protections) operates arbitrarily in respect of one minority class of employees – for no logical or defensible policy reason - it should be repealed immediately.

20	Employment Protections: (3) Workplace Bullying

The FW Commission anti-bullying jurisdiction has been in operation for 14 months [Part 6- 4B], FW Act. At the time of writing, the jurisdiction had produced just one anti-bullying Order; the Order was by consent and it has since been revoked, again by agreement⁶⁹⁰

It may still be too early to make an informed assessment of the jurisdiction but it is not unreasonable to conclude that, so far, the FW Commission’s preference is to settle matters by agreement wherever possible. Given the complex workplace and psychological factors involved in bullying cases, this approach is perhaps understandable, however it is difficult for industrial parties to make an assessment on the type and rigour of evidence required to achieve an arbitrated anti-bullying order. It is also not possible to assess the efficacy of the jurisdiction against the expectations of employers, employees, unions and the community, or to determine if the jurisdiction has created a deterrent to bullying in the workplace.

At the time the FW Act was amended it was suggested that new resources may be employed to provide dedicated mediation services for the anti-bullying jurisdiction. The limited experience to date suggests that if the current legislation is to have an impact without adding to delays for applicants, more resources are required – notwithstanding the fact that we understand that at least some of the promised resources have in fact been delivered. This is because, as the discussion below illustrates, an “unintended effect” of the anti-bullying regime is the time it takes to have a matter resolved.

Consideration should be given to resourcing the FWC with dedicated conciliators who can hold conferences quickly and efficiently and make recommendations about how cases should proceed; for example, is there enough evidence to proceed to hearing? The FW Commission’s dedicated Unfair Dismissal Unit is a model for such an approach. The FW Commission should also record and publish the length of time it is taking to settle or arbitrate these matters so that a more fulsome review can occur in due course.