ARTIO wants shake-up of unfair dismissal laws

Date: 20.02.2012

ARTIO wants employees to pay $500 bond to prevent them from launching vexatious unfair dismissal claims

By Brad Gardner | February 20, 2012

The trucking industry’s leading industrial relations representative body has called for a shake-up of unfair dismissal laws to prevent employees from launching dubious claims.

The Australian Road Transport Industrial Organisation (ARTIO) has criticised the current set-up as part of its submission to a review of the Fair Work Act.

According to the submission, some former employees are launching unfair dismissal applications to see what can be "screwed out of the employer" rather than to obtain relief from unjust treatment.

Labelling the practice as "go away" money, ARTIO says it is cheaper for trucking companies to pay a sacked employee $5000 to $6000 rather than defend themselves before Fair Work Australia, even if they are in a strong position to do so.

ARTIO wants the current application fee of $62.40 to lodge an unfair dismissal claim scrapped in favour of a $500 bond.

"We consider that a bond of $500, refundable if the claim is found to have merit, would improve the system enormously. Face to face conciliation conferences would also assist where applications appear prima facie without merit," the submission says.

"ARTIO submits that there is a need to strengthen [an] employer’s protection against unfair dismissal proceedings from vexatious and ill-conceived applications with little prospect of success."

The group says a manager of a trucking company may be forced to leave the business for two to three days to resolve an unfair dismissal dispute.

"The dilemma faced by an employer revolves around the actual cost of defending a matter in addition to the hidden costs of time and effort required to participate in the process," ARTIO’s submission says.

The group has also taken aim at general protection provisions, which are designed to prevent an employer discriminating against a staff member for exercising a workplace right, such as joining a union or being absent from work for an illness.

ARTIO claims the extension of the provisions to prospective employees has increased the cost of hiring staff and has led to some trucking operators deciding not to fill positions.

"General protection provisions should not be available in unfair dismissal cases, or alternatively should only be available within the same timeframes as unfair dismissal applications," ARTIO says.

Workers can currently launch a general protections dismissal application against their former employer within 60 days of the incident occurring. Applicants must also pay a fee of $62.40.

However, applications for unfair dismissal must be submitted within 14 days of the incident.

ARTIO’s submission includes a proposal to remove a union as the default bargaining representative on the basis most employees now choose not become a member of one.

Furthermore, it has sought changes to the rules governing protected industrial action.

"Protected action should be a ballot of the entire workforce to be covered by the particular agreement and undertaken only after genuine negotiations and compulsory FWA conciliation has failed," ARTIO says.

"As the protected action provisions currently apply, a particular bargaining representative can seek a protected action ballot solely from amongst his/her selected group of employees."

In its submission to the review of the Fair Work Act, the Australian Council of Trade Unions says the legislation "has been irrefutably good for workers and good for the economy".

"The facts show that a record number of collective agreements are being made, industrial disputes are down, the economy is growing at a steady pace, unemployment and inflation are low, and wage growth is solid and sustainable," ACTU Secretary Jeff Lawrence says.

The union wants the Act’s provisions bolstered to target companies that fail to bargain in good faith and for all workers to have the same unfair dismissal rights.

Currently, an employee working for a business that hires less than 15 workers must have spent at least one year in the job to be eligible for unfair dismissal.

The requirement is six months for an employee in a business that hires 15 or more people.

The ACTU says the 14 day unfair dismissal deadline is too short, leading to many employees with valid claims to miss out on having their case heard.

"The deadline should be extended to 60 days (to match the deadline for filing unlawful dismissal claims), or 21 days at least – bearing in mind that the deadline for most other civil claims is six year," the ACTU’s submission says.

During the development of the Fair Work Act, the Federal Government announced the legislation would be reviewed two years after it commenced.