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David Bates
+ About David Bates

David Bates is an Executive Counsel & Team Leader at Harmers Workplace Lawyers, where he works across all of the firm's practice areas. Prior to his appointment in August 2017, David was the Managing Director of a leading, online, subscription-based employment relations service where he provided a wide range of strategic, practical and plain-English advice to Australian business owners and operators.

David gained his BA (Government) from the University of Queensland in 1998 before going on to complete a Law degree, with Honours, in 2001. He began his career working for a large, blue-collar union before moving to Canada and then the United Kingdom, where he was employed by both the Commission for Racial Equality and its successor, the UK Equality and Human Rights Commission.

David routinely represents parties in Fair Work-related proceedings and is available to assist clients with all aspects of employment law-related compliance and best-practice. David is also an accomplished and highly sought-after public speaker who facilitates dynamic, informative and highly interactive workshops on all aspects of Australian employment law.

The perils of dismissing employees

Wednesday, November 14, 2018

Australia’s current unfair dismissal laws have now been in place since mid-2009, yet many employers remain unaware of what exactly an ‘unfair dismissal’ is and what they can do to minimise the risks of a claim being filed by a disgruntled ex-employee.

So, let’s take a closer look.

Under the Fair Work Act 2009, an ‘unfair dismissal’ is one which is ‘harsh’ or ‘unjust’ or ‘unreasonable’. While these terms are not defined in the Act, there are a range of questions the national workplace relations tribunal – the Fair Work Commission – must ask when deciding whether a dismissal was unfair. These questions include (but aren’t limited to):

·       was there a valid reason for the dismissal relating to the employee’s capacity or conduct?;

·       was the employee notified of that reason?; and

·       was the employee given an opportunity to respond?

Another important question the Fair Work Commission must consider is whether the employee was legally-protected from unfair dismissal when they were fired. This is because only employees who have completed the applicable ‘minimum employment period’ are eligible to pursue an unfair dismissal claim.

The minimum employment period is determined by the total number of employees employed by the business, and includes any workers in an ‘associated entity’. If the business has fewer than 15 employees, the applicable minimum employment period is 12 months. In all other businesses (i.e. those with 15 or more employees), the minimum employment period is 6 months.

Importantly, if the business qualifies as a ‘small business’, the employer is also entitled to rely on the ‘Small Business Fair Dismissal Code’ when letting an employee go. If the employer complies with the Code and an unfair dismissal claim is then made against the business, the Fair Work Commission will find the dismissal to be ‘fair’.

Lastly, it’s important to note that the Fair Work Commission will give considerable attention to the process that was followed by the employer leading up to the dismissal. For example, if an employee was dismissed for poor performance, the Fair Work Commission will generally expect the employee to have been given a prior final warning.

Similarly, if an employee is dismissed for misconduct, the Fair Work Commission will be keen to know if the employee was given an opportunity to ‘show cause’ why they shouldn’t be dismissed before a final decision to end their employment was made.

In summary:

·       Know which employees are protected from unfair dismissal;

·       Always follow a fair, thorough, and impartial dismissal process; and

If yours is a small business, always comply with the Small Business Fair Dismissal Code. Making sure you know where you stand before you dismiss an employee can save a lot of time and money down the track.

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Danger: you could be an accessory under the Fair Work Act

Thursday, November 08, 2018

Over the past fortnight, I’ve been fortunate to deliver presentations at a number of fantastic events around the country. Many of these conferences were attended by employers and their advisors, such as accountants, bookkeepers and HR professionals.

One topic that consistently came up was ‘accessorial liability’ under the Fair Work Act 2009. Alarmingly, not nearly enough is known about this extremely important topic.

Accessorial liability arises as a consequence of section 550 of the Fair Work Act, which is as follows:

Involvement in contravention treated in same way as actual contraventio

1. A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

2.  A person is involved in a contravention of a civil remedy provision if, and only if, the person:

(a)  has aided, abetted, counselled or procured the contravention; or

(b) has induced the contravention, whether by threats or promises or otherwise; or

(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

(d) has conspired with others to effect the contravention.

These provisions mean any person who is ‘involved’ in a contravention of the Fair Work Act (including breaches of Modern Awards and Enterprise Agreements) can be held liable for those breaches as an ‘accessory’.

For example, an accountant who provides payroll services for a business owner, who is underpaying their employees, can be found liable for those underpayments as an accessory.

This is just one of countless scenarios where accessorial liability could arise. Given the breadth of the provisions, virtually anyone (including an internal employee), who provides HR or payroll services or advice to an employer, can be held liability as an accessory, even if they indirectly omit to do something!

The Fair Work Ombudsman (FWO) is increasingly relying on section 550 of the Fair Work Act when initiating prosecutions against employers. Both employers and their advisors need to know about this so that steps can be taken to minimise the risks.

Sadly, far too many people are only becoming aware of section 550 and its very serious consequences when it’s already far too late.

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The ACTU campaign wants to change the rules

Wednesday, October 31, 2018

Over the past week, the Australian Council of Trade Unions (ACTU) has been encouraging workers to attend its ‘Change the Rules!’ rallies in Australia’s capital cities. According to the ACTU, the ‘Change the Rules!’ campaign is about giving “…all working people the basic rights they need to improve their living standards” (https://changetherules.org.au/learn-more).

The ‘rules’ the ACTU hopes to change are the workplace relations laws found in the Fair Work Act 2009. The Fair Work Act was introduced by the first Rudd Labor Government back in 2009, and was steered through the Parliament by the then Workplace Relations Minister, Julia Gillard.

So, just to be clear then, the ‘rules’ the ACTU now desperately wants to change are the ones they helped write and which were enacted by a strongly pro-union government. Hmmm.

Leaving aside the fact it’s fairly unusual for any organisation to champion the abolition of a system it helped create, I for one support changing at least some of the ‘rules’ enshrined in the Fair Work Act.

Take minimum rates of pay for example. Imagine for a moment you’ve decided to open a new shop selling cakes and coffee and have just hired your first employee (we’ll call him Ben). One of the first things you’ll obviously need to decide is how much you need to pay Ben. Well, let’s follow the ‘rules’ to find out…

First, we need to decide which of the 122 Modern Awards applies to Ben as a matter of law. Chances are we’ll be able to narrow this down fairly quickly to two Modern Awards: the Fast Food Industry Award and the Restaurant Industry Award.

It ‘feels’ like it should be the former, but the term ‘restaurant’ is defined very broadly in the latter. And your shop has tables and chairs and some people eat their cake and drink their coffee at the tables, and others ask for everything ‘to go’. Turns out you can’t decide which Award applies and you need expert help.

After eventually settling on an Award, you discover Ben is entitled to a different hourly wage depending on whether he is:

·       16, 17, 18, or 19 years of age;

·       permanent full-time or part-time or casual;

·       working within the Award’s ‘span of ordinary hours’;

·       working on a weekday, or a weekend, or a public holiday (or during ‘ordinary hours’ on a weekend;

·       working hours that qualify as ‘overtime’ under the Award (except on a weekend, when a different rate might apply);

·       working a ‘late night’ during the week (but not on a weekend);

·       working an ‘early morning’ but (not on a weekend);

·       assigned to Level 1, Level 2, Level 3, Level 4, Level 5, or Level 6 of the Award

·       working a ‘split shift’;

·       entitled to a meal allowance that day;

·       required to wear ‘special clothing’;

·       entitled to have clothing washed; and

·       required to have any of his own equipment.

Unsurprisingly, you decide it’s all just too hard (you don’t have an accountant or payroll expert on the books after all) so you choose to pay Ben a fixed annual salary instead.

Unfortunately, in doing so, you fail to comply with the page-long set of ‘rules’, which must be followed when paying an annualised salary to this Award-covered employee. This ends up exposing you to penalties of just over $60,000 per breach. So, you fire Ben, face an unfair dismissal claim (which you end up settling by paying Ben ‘go-away’ money) and then close your shop.

Memo to the ACTU: yes, please change (some) of the rules!

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Tips & traps of Enterprise Agreements

Wednesday, October 17, 2018

Here at Harmers, we routinely assist employers through the minefield that is Enterprise Agreement-making. What was once a relatively straight-forward exercise is today, unfortunately, comprised of a complex series of steps that must be carefully followed and documented.

While it simply isn’t possible to cover this topic in any depth here, there are a few tips and common traps we nonetheless thought we’d highlight, given just how many new Agreements are falling down at the last hurdle, due to procedural failings. 

Tip 1: Fill in the paperwork as you go

Once a new Agreement has been approved by employees in a ballot, it needs to be lodged with the Fair Work Commission for formal approval. Each Agreement needs to be accompanied by a Form F16 and a Form F17. The latter is a very detailed statutory declaration that can often take a long time to complete. We recommend you start completing this form at the beginning of the process, and then update it as you go. 

Trap 1: Don’t ignore the strict timeline requirements

Extremely strict time-related rules apply to Enterprise Agreement-making and if you break any of these rules, your Agreement will ultimately be rejected and you’ll be back at square one (it really is as bad as it sounds!). Here are just some of the timing rules that must be followed:

The Notice of Employee Representational Rights (“NERR”) must be issued to all employees who will be covered by the Agreement within 14 days of the ‘notification time’;

There must be a minimum of 21 days between the date the last NERR is issued and the date the employer requests employees approve a proposed Agreement; and

There must be 7 clear days before a ballot takes place, during which employees have access to the draft Agreement and any other relevant documentation (this is called the ‘Access Period’); and

New Agreements must be lodged with the Fair Work Commission for approval within 14 days of a successful ballot.

Tip 2: The Fair Work Commission has published an online date calculator

The Fair Work Commission has now published an online ‘date’ calculator that makes it much easier to comply with these complex rules. You’ll find the calculator here.

Trap 2: Don’t forget: All new Agreements must pass the BOOT

‘BOOT’ stands for ‘Better Off Overall Test’, and all new Agreements are assessed by the Fair Work Commission against the BOOT. The Fair Work Commission can generally only approve a new Agreement if it passes the BOOT. An Agreement will pass the BOOT if it can be shown each employee covered by the Agreement will be left better off overall under the terms of the Agreement, as compared to any otherwise applicable Modern Award.

Tip 3: Make sure you know which Modern Awards apply

If you don’t know which Modern Awards apply to the employees who will be covered by a proposed Agreement, you’ll have no way of knowing if it will pass the BOOT! Always get expert advice about Award coverage before you start the negotiation process.

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Two bites of the cherry

Wednesday, October 10, 2018

My recent post regarding adverse action claims generated quite a few questions from concerned employers. One question that came up time and time again was ‘so what exactly is the difference between unfair dismissal and adverse action?’ In fact, there are a number of very important differences, so I thought this deserved a blog post all of its own.

Nature of the claim

An unfair dismissal claim arises when an ex-employee alleges their dismissal was ‘harsh, unjust or unreasonable’ in the circumstances. This is quite different from an ‘adverse action’ claim, where (generally) a person alleges their employment was terminated because of a ‘workplace right’. For example, they might have complained to the Fair Work Ombudsman (FWO) about their wage, only to then be fired when their employer finds out.

It’s important to note there are many different protected workplace rights and a person doesn’t necessarily need to be fired in order to bring an adverse action claim.

Who can bring a claim?

Only employees who have completed the applicable ‘minimum employment period’ are protected from unfair dismissal. The minimum employment period is determined by the number of employees working in the business. If it’s fewer than 15, the minimum employment period is 12 months. In all other businesses, it’s six months.

In contrast, adverse action claims can be filed by a person at any stage, even if they’ve never actually been an employee! For example, prospective employees (such as those who have only applied for a vacancy) are eligible to bring an adverse action against their prospective employer if they feel they were denied employment because of a workplace right.

Importantly, it’s not just employees who can bring an adverse action claim. These provisions of the Fair Work Act also extend to independent contractors, principals, industrial associations, and even employers (yes, in some circumstances, employers can bring adverse action claims against their employees!).

Who has the burden of proof?

If an employee claims they were unfairly dismissed, it’s up to them to prove this allegation. In sharp contrast, adverse action claims involve an unusual reversal of the ‘onus of proof’, meaning the employer is the one who needs to disprove the allegation. In practice, this can very tricky indeed.

What compensation/penalties are available?

If an employer is found to have unfairly dismissed an employee, the maximum compensation that can be awarded is capped at whichever is the lesser of either six months’ pay or half of the current High Income Threshold. 

In comparison, there is no maximum cap in adverse action claims, and employers can also face penalties if they’re found to have taken unlawful adverse action because these parts of the Fair Work Act are what are known as ‘civil remedy provisions’.

In summary, this all means adverse action claims can prove very expensive and extremely time-consuming.

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4 employment myth busters

Wednesday, October 03, 2018

This week our firm will be hosting another of our regular ‘employment law myth busting’ webinars. These webinars tend to be particularly popular because almost every employer has fallen for an ‘urban HR myth’ at some time or another.

Not sure if you’ve ever believed an HR fairytale? You’re certainly not alone! Here are just some of the myths we’ll be busting this week:

Myth 1: Small businesses are excluded from Unfair Dismissal laws

This myth was actually fact…a decade ago! However, since the commencement of the Fair Work Act, all the way back in mid-2009, employees in the national system have become protected from unfair dismissal as soon as they’ve completed the applicable ‘minimum employment period’. This period is 12 months where the business has fewer than 15 employees. It’s 6 months in all other businesses.

Myth 2: If I dismiss someone before they complete their probationary period, they can’t bring a claim against me.

While it’s true an employee who hasn’t completed the applicable minimum employment period isn’t protected from unfair dismissal (see Myth 1 above), any employee can accuse you of:

(a) discrimination

(b) taking adverse ‘action against’ them; or

(c) breaching their employment contract

at any time during their employment (including during their probationary period and, in the case of (a) and (b), even if you don’t employ them!

Myth 3: I can pay my employees whatever we agree as long as it’s above the National Minimum Wage.

The National Minimum Wage is designed as a ‘safety net’. It only applies to employees who are not covered by a Modern Award or an Enterprise Agreement. The simple fact is most employees in Australia are covered by either a Modern Award or an Enterprise Agreement and these contain minimum rates of pay (as well as a dizzying array of other terms and conditions of employment), which much be provided to the relevant employees.

Myth 4: I can cash out all my employee’s accrued annual leave if they request it.

While you might be doing your employee a favour, you certainly won’t be doing yourself (or your business) one, if you allow an employee to cash out all their accrued annual leave. Unless an employee’s employment has come to an end, strict rules must be followed whenever annual leave is cashed out, and a minimum balance must always be retained.

There are so many myths out there that it’s often hard to know where to start. We hope this brief look at just some of them has been helpful and got you thinking: what other HR myths have I believed!?

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Unfair dismissal: 7 things you need to know.

Thursday, September 20, 2018

Many employers will be familiar with the sinking feeling that inevitably accompanies receipt of an unexpected email from the Fair Work Commission (“Commission”). Just when you thought you could finally put an unpleasant employee experience behind you, you’re sent a copy of their unfair dismissal application.

Once received, employers are expected to respond to the application, within seven days, using the Commission’s Form F3 (‘Employer’s Response to Unfair Dismissal Application’). It’s at this stage that many employers then contact their lawyer for advice and assistance.

One of the most common questions we receive from clients facing an unfair dismissal is ‘what on earth is a jurisdictional objection?’. This enquiry is usually prompted by question 2.1 on the Form F3 that asks: “Do you have any jurisdictional or other objection(s) to the application?”

At its simplest, this question is really asking the employer whether they agree the employee is, in fact, legally-entitled to pursue their unfair dismissal claim. 

There are, in fact, a number of requirements that must be met by an employee before they become entitled to claim unfair dismissal, and this question provides employers with an important opportunity to challenge the legal validity of the application. 

You may then be asking: ‘what are the grounds for objecting to a claim?’. Helpfully, question 2.2 on the Form F3 lists each of these in turn. There are 7 of them so let’s take a closer look:

1. Was the application lodged ‘out of time’? Employees must file their unfair dismissal claim within 21 days of their dismissal taking effect. If it was lodged after that deadline, the employer can object and the employee will then be required to prove there were ‘exceptional circumstances’ which justify an extension to the filing deadline.

2. Was the applicant an ‘employee’? Only employees are protected from unfair dismissal. So, if the applicant was an independent contractor (or anything other than an employee), this is your chance to let the Commission know.

3. Was the applicant actually dismissed? Only an employee who was dismissed at the employer’s initiative can bring a claim for unfair dismissal. This means if the employee voluntarily resigned, you should make this clear in your response.

4. Was the applicant made ‘genuinely redundant’? A redundancy which meets all of the Fair Work Act 2009’s requirements of ‘genuineness’ is not an unfair dismissal. If you’ve met all these requirements, make sure the Commission knows it.

5. Did the employee meet the ‘minimum employment period’? An employee only becomes protected from unfair dismissal once:

(i) they have been employed by a small business (one with fewer than 15 employees) for at least 12 months; or

(ii) they have been employed by a business with 15 or more employees for at least 6 months.

If the applicant doesn’t meet this requirement, you can object.

6. Was the applicant being paid more than the ‘High Income Threshold’ (HIT)? An employee who earns more than the HIT is not able to bring an unfair dismissal claim unless they are also covered by a Modern Award or an Enterprise Agreement. The HIT is adjusted each year by the Commission, and is currently set at $145,400 p/a. Compulsory super contributions are excluded from the calculation of the HIT, but the agreed monetary value of other guaranteed entitlements (such as a company car) must be included.

7. If your business is a ‘small business’, was the dismissal consistent with the Small Business Fair Dismissal Code? Many small business employers remain unaware that by carefully following the Code when dismissing an employee, any subsequent unfair dismissal claim can be quite easily defended. You can download the Code here.

Understanding and relying on the above objections to unfair dismissal claims can save employers considerable amounts of time, worry, and money!

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3 things you must know about adverse action claims

Wednesday, September 12, 2018

I’m currently ‘on the road’ speaking at a series of employment law conferences being held in capital cities around the country. The title of my presentation is ‘Defending General Protections Claims’ and, as the heading suggests, my session focuses on the steps employers can take to fend off an allegation of so-called ‘adverse action’.

Despite the Fair Work Act 2009 (“Act”) having now been in operation for almost a decade, surprisingly few employers are as familiar with the ‘General Protection’ provisions as they are with, say, the unfair dismissal provisions or the National Employment Standards (NES). So this week, I’ve decided to share the top 3 things every employer needs to know about adverse action claims.

1. You can’t take adverse action because of a workplace right

Part 3-1 of the Act brings together a disparate range of entitlements under the heading ‘workplace rights’, and prohibits employers from taking (or threatening to take) ‘adverse action’ against someone because they exercise (or seek to exercise) one of their protected workplace rights. Examples of ‘adverse action’ include – but are certainly not limited to: demoting, suspending, or terminating an employee.

‘Workplace rights’ is given a very broad definition, and so is the concept of ‘adverse action’. This means a huge range of common day-to-day situations can give rise to an ‘adverse action’ claim. 

2. There is a reverse onus of proof

Many employers are very surprised (read: seriously alarmed!) to learn that adverse action claims are subject to a reverse onus of proof. If someone claims they’re a victim of adverse action, it is the respondent’s responsibility to disprove that allegation.

Compare that with, say, unfair dismissal or unlawful termination claims, where it is up to the aggrieved ex-employee to prove their dismissal was unfair or unlawful. The reversal of the onus of proof in adverse action claims means those who are accused must scramble to find records, notes, correspondence (and witnesses) which will prove decisions were made - or actions taken - for reasons other than the existence of a workplace right. 

3. Almost anyone can make an application

Most employers know employees are not protected from unfair dismissal until they have completed the applicable ‘minimum employment period’. This is 12 months for small businesses, and 6 months in all other cases.

Compare that with adverse action claims, which can be brought by:

Any current employee against their employer

Any prospective employee against their prospective employer

A currently-engaged independent contractor against their principal

A prospective independent contractor against their prospective principal

A principal against their independent contractor

An employer against their employee (!)

A person against an industrial association, or an officer or member of that association.

Phew! As you can see, the net has been cast very wide here, and it pays to make sure you’re not at risk of an expensive and time consuming adverse action claim any time soon.

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All I’m asking is for a little R-E-S-P-E-C-T

Wednesday, September 05, 2018

Unlike the music of the late Aretha Franklin, following the law can be dull and downright frustrating. Near my home, roadworks have been going on for many months and the usual 80km speed limit has been reduced to 60km for what seems an eternity. 

This reduced speed limit means I need to allow more time when driving to meetings or hearings. And it means cars driving so close to my rear bumper that we’d both be doomed if I stopped unexpectedly. But no matter how unjustified I think the new speed limit is, and no matter my personal views on slowing down traffic (even when no roadwork is actually being done!), I drive at 60km because that’s the law, and I respect it.

When it comes to our nation’s employment laws, the Australian Council of Trade Unions (ACTU), along with some (but certainly not all) individual unions, appear to have little respect. Shortly after taking over as Secretary of the ACTU in 2017, Sally McManus proudly announced:

"I believe in the rule of law when the law is fair and the law is right…But when it's unjust I don't think there's a problem with breaking it.”

Note that Ms McManus reserves the right to decide for herself whether a law is ‘just’ or ‘unjust’ and, therefore, whether it should be followed or blatantly ignored. Imagine for a moment if employers adopted the ‘McManus Approach’ to the rule of law:

The local shopkeeper learns the Fair Work Commission has announced an annual increase to minimum wages. But she believes it’s ‘unjust’ for her workers to get a pay rise when business isn’t going so well, so she’ll keep paying her workers the old minimum rate.

The accounting firm up the road finds out their receptionist is pregnant and will be taking parental leave. The partners meet and decide it’s ‘unjust’ for them to have to keep her job open for her to return to for up to two years, so they fire her instead.

A building contractor loses an unfair dismissal case filed against them by a former employee. The Fair Work Commission has ordered the business to reinstate the worker. The owner feels the decision is ‘unjust’, so he just ignores it.

According to the McManus Approach, all these scenarios would be perfectly acceptable provided the employer genuinely felt the law was unjust. Remember: “When it’s unjust, I don’t think there’s a problem with breaking it.”

But we all know how the ACTU would likely react to any employer behaving this way. There would be outrage, public shaming and – ironically – legal action.

The law is the law is the law. If you don’t like what the independent umpire decides, appeal it. If you don’t like the Act as drafted, amend or repeal it. If you don’t like the rules, change them.

But no one – whether it’s the ACTU or an employer – has the right to decide for themself which laws are ‘unjust’ and can simply be ignored. Such disrespect for our parliaments and our courts should never be allowed to influence the legitimate debate we need to have about our nation’s employment laws.

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Workplace relations back on the table

Wednesday, August 29, 2018

What a week it’s been! Since I wrote my last blog just seven days ago, Australia has a new Prime Minister and a refreshed Cabinet. And sitting at that new-look Cabinet table will be Victorian MP, Kelly O’Dwyer, the new Minister for Industrial Relations.

Many readers will be surprised to learn that the critical industrial relations portfolio was previously – and rather quietly - dumped from Cabinet and moved to the outer-Ministry.

That a Coalition Government in this day and age would consider industrial relations less important than other Cabinet-level portfolios is bizarre in itself. But when you consider our last federal election was a double dissolution election triggered by the failure of the Senate to pass a key piece of industrial relations legislation (the restoration of the Australian Building and Construction Commission – ABCC), the decision to dump industrial relation from Cabinet-level consideration was, quite frankly, farcical.

And don’t forget all we now know, as a consequence of the Royal Commission into Trade Union Corruption and Governance. Thanks to Commissioner Heydon, a bright light has been shone into some very dark (and deeply-incompetent and corrupt) places.

Given all the above, industrial relations should be at the front and centre of almost every Cabinet-level deliberation.

The appointment of Kelly O’Dwyer as the new Minister for this portfolio – and the (re)elevation of this vital portfolio to Cabinet is good news for employers and employees alike. But the clock is ticking and there is no time to waste.

Our current system of workplace regulations, rights, and entitlements is comprised of a complex mix of State, territory, and Commonwealth laws, which leaves much to be desired.

Employers – particularly those running small to medium sized businesses – feel over-regulated and under-valued. Meanwhile, employees who fall victim to unscrupulous bosses or unlawful conduct (such as sexual harassment and bullying) all-too-often find themselves overwhelmed by difficult jurisdictional options and crippling legal costs.

Much can be done by the incoming Minister to make the system work better for everyone.

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