By Sooraj Sidhu and Lindsay Carroll, NRA Legal

Yesterday, the Fair Work Commission’s (FWC) president Iain Ross responded to reports commissioned last year, which urged the establishment of a ‘Small Business Division’ of the Fair Work Commission and the reduction of red tape associated with unfair dismissal and adverse action claims.

The news comes following research conducted by the Institute of Public Affairs which identified that the number of workers employed by small businesses had declined by 330,000 (or 7%) in the past decade. Further, the think tank revealed small businesses were almost twice as likely to shut down when compared to large businesses between 2013 and 2017.

The Agile Advisory report’s recommendations

The report, prepared by former business minister and chair of the Franchise Council of Australia Bruce Billson, followed extensive research and consultation regarding users’ experiences of the fair work system and how the FWC might better service their needs.

The report made a number of recommendations for action by the FWC to help mitigate the significant costs and distress suffered by under-resourced small businesses after being served with an application in the FWC.

Specifically, the four priority areas include:

  1. an early triage approach to filter applications by:
    1. mandating the production of certain information by applicants before being served on small business employers;
    2. empowering Commission Members to dismiss baseless applications.
  1. the formation of a dedicated Small Business Division within the FWC to:
    1. identify “frequent flyers” and consider their familiarity with the system;
    2. achieve earlier resolutions, minimal costs and less-legalistic approaches; and
    3. deliver decisions that can be easily adapted to employer guidance.

  2. the establishment of ongoing consultation channels with small businesses through meetings organised by employer organisations; and
  3. reviewing and revising education materials and advisory services (with an emphasis on Award selection and employee classifications) in collaboration with the Fair Work Ombudsman (FWO) to adopt a plain-language approach.

Other notable recommendations include penalising parties for making any false and misleading statements and a stronger focus on the merits of the claim during conciliation as opposed to settlement amounts.

According to the Australian Chamber of Commerce and Industry (ACCI), substantive changes to the national fair work system are still necessary to fully address these concerns. However, ACCI has welcomed the opportunity for further consultation and hopes to generate broader awareness of the difficulties faced by small businesses in the FWC.

Where to from here?

The Hon. Justice Iain Ross AO announced the FWC’s action plan for 2018-19 yesterday afternoon to improve access and reduce complexity for its users. This action plan outlines a series of non-legislative changes the FWC will make to:

  • provide additional support to self-represented users (employees and employers), particularly at the early stage of dismissal cases.
  • partner with experts in ‘behavioural insights’.
  • introduce a new case management system, which will have benefits for ‘one shotters’ and repeat players.
  • expand access to free legal advice, through the expansion of the Workplace Advice Service
  • develop short summaries of key modern awards and improving agreement processing times.

The National Retail Association (NRA) welcomes feedback from its members in relation to the proposed action plan outlined above and their experiences in the Fair Work Commission including the challenges that small businesses face in navigating the system.

ACCI has scheduled a conference for business groups to discuss the process of implementing these recommendations in late September, at which NRA will be representing the interests of its members. NRA will also continue to work with the Australian Small Business and Family Enterprise Ombudsman (ASBFEO) to identify other avenues of streamlining regulatory processes, including in the FWC, for small businesses.

NRA encourages its members to submit any comments or feedback on these issues by emailing info@nra.net.au or calling 1800 RETAIL (738 245) to speak with a workplace advisor.