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David Bates
+ About David Bates

David is the Managing Director of Workforce Guardian where he provides a wide range of strategic, practical and plain-English advice to Australian business owners and operators. He is deeply committed to assisting employers and is a passionate advocate of competition and free-enterprise.

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 the UK Equality and Human Rights Commission.

David routinely represents employers in Fair Work-related proceedings and can assist with every aspect of employment relations compliance. David is also an accomplished and highly sought-after public speaker who facilitates dynamic, informative and highly interactive workshops on all aspects of industrial relations best-practice.

He is proud to lead a highly-qualified team of ER, HR and Technical professionals at Australia’s leading, online employment relations service.

Time to restore confidence in the Fair Work Commission

Wednesday, February 22, 2017

By David Bates

With a number of Commissioners resigning from their lucrative and life-long (well, until 65) appointments to the Fair Work Commission, the Minister, Senator Michaelia Cash, has confirmed that replacements will be announced in the near future.

So I dare the Minister, no – I double dare her – to finally appoint some actual small business owners to fill these vacancies.

Quite frankly, the last few years have seen the last of the Commission’s credibility go up in flames. Whether it was the train crash behaviour of former Vice President Michael Lawler (he of the extraordinary Four Corners interview while on 11 months of fully-tax-payer-funded personal leave), or the more recent departure of Vice President Graham Watson (who sent a scathing letter of resignation to the Minister describing chaos and dysfunction), there are very few still of the opinion the Commission is meeting the community’s expectations.

So, enough is enough, Minister. No more top-of-town lawyers being tapped on the shoulder for the Commission please.

And, for the love of God, please don’t appoint any more trade union officials to what is already a union-dominated Commission.

And just in case you’re tempted to take the easy option, please don’t appoint the current Fair Work Ombudsman, Natalie James, to the Commission either. The last thing the Fair Work Commission needs is another career public servant deciding the fate of small businesses.

I know this is novel and a little ‘out of the box’, but how about appointing some people who’ve actually run a small business? You know, people who understand the long hours, hard work, and thankless effort that’s required to keep the lights on, the employees paid, and the customers happy.

You might not think ‘Nancy the newsagent’ or ‘Dan the drycleaner’ are qualified to be Fair Work Commissioners. But let me assure you they know more about the real world, managing staff and running a business than an employer association lawyer or trade union official ever will.

Imagine the common sense and integrity Commissioners like Nancy and Dan would bring to the table. Imagine how hard they’d work (because they’re used to it). Imagine how excited they’d be to help others – employers and employees alike – resolve their disputes and run successful businesses. Imagine their unique insight into the realities facing employers and employees in contemporary Australian small businesses.

Go on Minister, be brave. Accept my challenge. Ruffle a few feathers and put an end to the ‘business as usual’ approach that has virtually destroyed public confidence in the Commission. It’s up to you.

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High hopes for Michaelia Cash, dashed

Wednesday, February 15, 2017

By David Bates

I had high hopes for the current Employment Minister, Senator Michaelia Cash. Many employers did. She seemed like a Minister on top of her brief, someone who genuinely understood all that’s so deeply wrong with Australia’s hopelessly complex employment laws and, just as importantly, someone with the ability to quickly begin putting things right.

And then came the last federal election. An election which had been called because of the Senate’s refusal to pass the Coalition’s Bill re-establishing the Australian Building and Construction Commission (ABCC). 

You would have thought an election triggered by contentious employment-related legislation would have seen the Employment Minister given a very high-profile role during the grinding, eight-week long campaign.

But, no, the Employment Minister went missing in action. An election which could have been fought on the need to restore the rule of law on construction sites, end union thuggery and corruption, and finally provide small business owners with the flexibility they so desperately need and deserve was completely overshadowed by Labor’s so-called ‘Mediscare’ campaign.

There’s a word to describe the Coalition’s last federal campaign: pathetic.

And now, the icing on the cake. 

For at least two years now, employers and unions (yes, both sides!) have been calling on the Minister to amend the law to prevent Enterprise Agreement applications being thrown out because of minor errors made during the negotiation process. In some cases, for example, Agreements which had taken over a year to finalise were rejected by the Fair Work Commission because employees had been given the wrong website address to visit for more information. There’s a word for that too: ridiculous.

This week, the Minister (finally) announced the laws will be changed. Hallelujah. 

But if it takes this long for the Minister to approve minor amendments which are supported by both employers and unions, what hope is there of her making those other vital changes small businesses need and which unions violently oppose? Not much.

So, folks, it looks like this is as good as it gets. 

No other developed country on Earth expects small business owners to read and comply with endless pages of incomprehensible, union-friendly, pro-employee rules and regulations. 

No other developed county on Earth forces its small business owners to justify the dismissal of their employees before a tribunal comprised mostly of former trade union officials with no legal qualifications.

And no other developed country on Earth would allow their parliamentarians and unelected bureaucrats to suffocate small businesses with the kinds of inane and illogical laws and regulations employers routinely face here in Australia. 

My high hopes are well and truly dashed.

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Small business won’t miss this Coalition Government

Wednesday, February 08, 2017

By David Bates

When the next federal election comes around and the Coalition inevitably loses the ability to govern (either in its own right or at all), confused and defeated Liberal and National MPs will no doubt wander around wondering ‘what went wrong’ and ‘how did it come to this’.

To those Coalition MPs: this is what went wrong, and this is why you were defeated:

1. Your election campaigns focussed on your support and respect for Australia’s small business owners. But then, after you’d been in power for a while and thought no one was looking, you quite happily dumped the small business portfolio onto a minister who isn’t even a cabinet member. Turns out you only cared about small business owners when you needed our votes.

2. You implemented no meaningful reforms of any kind whatsoever to Labor’s anti-small business Fair Work laws. Yes, you talked and talked about ‘innovation’, flexibility’, and ‘agility’, but you didn’t bother listening to any of the stakeholders who told you time and time and time again that the current laws make achieving any of those lofty ambitions virtually impossible.

3. You ran an entire, two-month long, double-dissolution election campaign without mentioning workplace relations. That could, perhaps, have been forgivable had it not been for the fact:

  • the entire election was actually triggered by the Senate’s refusal to pass workplace relations-legislation, and
  • the Royal Commission into Trade Union Governance and Corruption had just confirmed every small business owner’s worst fears about union thievery and thuggery, and
  • you were also busy telling us how much you cared about small business!

4. The relevant Minister basically was basically missing in action for the entire campaign. We should have known then your heart wasn’t really in it. You watched on in silence as scandal after scandal engulfed the Fair Work Commission. It was your job to speak up in defence of common decency when the Commission itself couldn’t or wouldn’t. You didn’t.

5. You failed to appoint small business owners to the Commission. When Labor is in power, they go to town appointing union officials, but when you were in power you just forgot that small business owners know more about the realities of workplace relations than you ever will.

So, wonder no more, your fate was sealed the day you won the last election and spent every week thereafter focussed on further expanding unaffordable middle class welfare, doubling our national debt, and pouring yet more money into the black hole that is our country’s 18 overlapping state, territory and commonwealth departments responsible for health and education.

We know Labor won’t be any better for small business, we just decided they couldn’t possibly be any worse. And, besides, at least they didn’t cynically pretend to be on our side just to get our vote.

No, Coalition, Australia’s small business owners won’t miss you.

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Two takeaways from the Pizza Hut pay saga

Wednesday, February 01, 2017

By David Bates

Ordered a pizza lately? If you have, there’s a good chance the driver who cheerily delivered it to your door was being underpaid by their employer.

What percentage of the Pizza Hut franchises investigated by the Fair Work Ombudsman (FWO) do you think were found to be fully-compliant with Australia’s hopelessly complex, arcane and inflexible employment laws?

80%? 50%? 30%?

No, just 8%.

That’s right, of all the Pizza Hut franchises audited by the FWO, 92% failed to demonstrate they were fully-compliant with the Fair Work Act and the applicable Modern Award.

Examples of common breaches included incorrectly classifying employees, failing to issue fully-compliant pay slips, failing to maintain correct time and wages records and, in some cases, incorrectly classifying employees as ‘independent contractors’ and paying drivers on a ‘per delivery’ basis.

The person in charge of the FWO, Natalie James (who issues countless press releases and apparently complains about being held accountable for the actions of the agency she leads), jumped on the telly to tell us she hopes Pizza Hut will now “step up, take responsibility, put in place step to make sure that their workers are paid correctly”.

So here’s two things every employer can take away (pardon the pun) from this latest (remember 7-11?) underpayment fiasco:

Takeaway #1: Our employment laws are not fit for the 21st century, and even employers who try to do the right thing find it virtually impossible to make heads or tails of the Fair Work Act and Modern Awards.

Here’s the proof: Pizza Hut franchisees apparently all had access to expert HR advice as part of their franchise agreement. However, that advice didn’t include guidance explaining which industrial instruments apply to specific employees within specific outlets. Put another way, small business owners now need to have a law degree and a Masters in Employment Law in order to understand their obligations.

Takeaway #2: the FWO is a disaster. Here’s the proof:

a) the FWO is, by law, responsible for educating Australian employers and employees about Fair Work practices, rights and obligations

b) the Fair Work Act has now been in operation for over six years.

c) 92% of Pizza Hut franchisees investigated by the FWO didn’t appear to have been educated about Fair Work practices, rights and obligations.

If I did my job as badly as Natalie James’ agency does theirs, I’d be asked to explain why I shouldn’t be dismissed for serious misconduct.

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Why I'm with VP Watson

Wednesday, January 25, 2017

By David Bates

When I appeared on the Switzer program last week and once again raised serious concerns about the operation of Australia’s national employment relations tribunal, the Fair Work Commission, I could not have imagined I’d be proven so right so soon.

But then, just a few days after my segment went to air, Fair Work Commission Vice President Graeme Watson resigned in disgust from his (very) well-paid and highly influential position, which he was entitled to hold until the age of 65.

In his blistering letter of resignation, VP Watson confirmed beyond any doubt that each and every one of the criticisms we have levelled at the Commission in recent years has been justified:

  • He said the Commission cannot be described as ‘balanced’. We’ve been saying that for years.
  • He noted businesses increasingly regard the Commission as ‘partisan, dysfunctional and divided’. We sure do!
  • He wrote that the current Fair Work system does not foster ‘cooperation or productivity’. Couldn’t have said it better myself.
  • He confirmed the Commission’s current modus operandi is damaging business and our national economy. It sure is.
  • And in remarks made some time ago, he lamented the narrow trade union background of many of those appointed until retirement to the Commission by various governments of the day. We have been red-flagging the appalling lack of diversity in Commission appointments for years.

Let there be no doubt: the very public resignation of the fourth most senior-ranked Commissioner – and the publication of his scathing resignation letter – is a major slap in the face for the Commission.

And don’t forget, this is the same tribunal which is still trying (unsuccessfully) to rebuild its reputation after the resignation of another former Vice President, Michael Lawler.

You may remember him – he is the partner of the now-convicted former head of the Health Services Union, Kathy Jackson, who took almost a year off on fully-paid (by the tax payer) sick leave on his salary of over $400,000 per year and decided that would be a good time to appear on the ABC’s Four Corners program.

You really should download the program if you haven’t already -  VP Lawler describes himself as ‘c**t struck’, and then goes on to demonstrate how he secretly recorded his telephone conversations with his boss, Fair Work Commission President, Iain Ross. Keep in mind Michael Lawler was still an appointed Vice President of the Fair Work Commission when that segment went to air.

You really can’t make this stuff up. And perhaps that’s why when I raise concerns about the Commission I’m often told things can’t really be as bad as I claim.

Thanks to VP Watson’s letter of resignation, you now know for sure they are … and then some.

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Forget pollie perks … what about the public service?

Wednesday, January 18, 2017

By David Bates

Peter’s article about the perks enjoyed by our politicians was (as usual) bang on the money. While I wish Sussan Ley hadn’t charged me for her new year’s eve cocktails with Sarina Russo, there are bigger fish to fry.

Take the public sector for example.

While small business owners are working every hour God sends, paying payroll tax and income tax, making compulsory superannuation contributions and generally keeping the economy ticking along for the benefit of every Australian, some public servants appear to be enjoying the good life at our collective expense.

Take the head Statistician of the Australian Bureau of Statistics (ABS), David Kalisch, for example. He was the fellow ultimately responsible for last year’s (entirely predictable) Census fiasco. If he worked for a small business and performed that badly, he’d probably have been sacked without notice.

But luckily for David, he’s employed by the Australian Public Service, on a total annual remuneration package of ... (insert drumroll) … just over $700,000. Yes, you read that correctly - $700,000. In case you’re wondering, the Prime Minister currently receives just over $500,000.

Go figure.

Or how about the current head of the Fair Work Ombudsman, Natalie James, who holds a tax-payer funded statutory appointment which expires next year. While the agency she leads publishes press release after press release confirming they have comprehensively failed their remit to explain Australia’s workplace relations laws to employers, she’s enjoying a total annual remuneration package of just over $400,000.

How many small business owners do you know that make that kind of money? Her generous package at least helps explain why she’s so out of touch with those who pay the taxes which pay her salary.

And while we’re on the subject of our tax dollars being wasted, let’s not forget the elephant in the room: we are incredibly over-governed. I never thought I’d say this, but Bob Hawke is 100% right: we need to abolish state governments.

Why on earth do taxpayers have to fund nine different education departments and nine different health departments, for example? If small businesses operated with as much duplication and waste as our state and federal governments, they’d be shuttered-up and closed-down within a matter of days.

So, Peter is right, let’s not waste time worrying about who paid for Sussan Ley’s hotel. Let’s instead start asking why our under-performing public servants and statutory office-holders are paid so much, and why we continue to fund obviously unnecessarily duplication in our state and territory governments.

After all, at least we can vote out the pollies.

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5 things on the small business wish list for 2017

Wednesday, January 11, 2017

By David Bates

Well my fellow small business owners, here we are at the start of a brand new year in a country which is allegedly led by a federal government that claims to favour small government, less red tape, innovation and free enterprise.

Put simply, ours should be one of the best places in the world to run a small business and we should all be feeling ‘there’s never been a more exciting time to be a small business owner’.

Are you feeling it? C’mon, are you excited?

Chances are you’re not, and you’re not alone.

Despite all the big promises made to small businesses by this government – and despite all the pro-small business rhetoric we hear in Question Time and in government press releases – now’s a terrible time to be a small business owner here in Australia.

So, for what it’s worth, here’s a list of the things I’d like to see the Government do for small business in 2017:

Wish One

Promise that - unlike her predecessor - the current Fair Work Ombudsman (FWO), Natalie James, won’t be appointed to the Fair Work Commission once her current five-year statutory appointment ends next year.

On her watch, the FWO has comprehensively failed its vital remit and become entirely unfit for purpose. 

Wish Two

Appoint new Fair Work Commissioners who have actually run small businesses themselves.

We need greater diversity in the background and life-experiences of those we appoint for life to the Commission. Trade unionists and career public servants certainly have a valid role to play, but small business lacks fair and equal representation at the Commission.

Wish Three

Cut business tax rates.

The USA is going to reduce corporate tax rates from 35% to 15%. If we don’t take urgent steps now to remain competitive, capital, jobs, and opportunity for Australian small businesses will flow out of our country across the Pacific.

Wish Four

Create a Modern Award specifically for small businesses.

Let’s face it, the vast majority of small business owners still don’t understand the Modern Award system, despite it having been in operation for more than six years.

Fact: simpler laws result in increased compliance.

If we want small business owners to comply with Modern Awards, let’s create one specifically for businesses with fewer than 15 employees … and let’s ensure it provides the flexibility they so-desperately need.

Wish Five

End the partisanship around workplace relations.

You can be pro-small business without being ‘anti worker’. You can negotiate fairly with law-abiding unions while being critical of union corruption. And you can respect small business owners while still legitimately criticising those employers who flagrantly break the law and rip off their workers. This is the message our government should be delivering to every employer, employee and union.

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Christmas closure confusion

Tuesday, December 20, 2016

By David Bates

Most Australian businesses close down for at least part of the Christmas/New year period, however, very few employers take the time to carefully review their legal obligations before confirming arrangements with their employees.

This in turn can lead to serious breaches of applicable Modern Awards, and even potential back payments and penalties being imposed.

Confusion regarding employee entitlements during annual shut downs is a consequence of the complex rules imposed by many of the 100+ industry and occupation-based Modern Awards which currently apply across the country.

Here are just some of the key points Fair Work-covered employers should keep in mind if they’re planning to shut down this Christmas:

  • Full-time and part-time employees often need to be paid their usual wage/salary during Christmas shutdowns. Specific rules may also be imposed by any applicable Modern Award(s) or Enterprise Agreement(s). 
  • In some cases, employees can be asked to take annual leave during the Christmas shutdown. However, if an employee is covered by a Modern Award or an Enterprise Agreement, you can only direct the employee to use their annual leave during the shutdown if this is expressly permitted by that Award or Agreement. 
  • If an employee is not covered by a Modern Award, they can be directed to take annual leave only if that direction is ‘reasonable’ in the circumstances.
  • If an employee doesn’t have enough accrued annual leave to cover the entire shut-down period, you may be required by an applicable Modern Award or Enterprise Agreement to offer them paid annual leave in advance.

However – and even more confusingly – many employees have the legal right to decline annual leave in advance, and in this case the employee may become entitled to receive their usual wage/salary for the entire period.

  • Many Modern Awards require the employer to provide their employees with a minimum period of advance notice before a shut down. Failing to provide notice when it’s required can invalidate the employer’s request, and result in all employees being entitled to payment as usual.

Confused yet?!

Sadly, unless and until someone (anyone!) fixes this mad array of overlapping rules and regulations, Australian employers will continue finding themselves on the receiving end of complaints and penalties once the Christmas spirit fades for another year.

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Industrial relations in 2016: the good, the bad and the ugly

Wednesday, December 14, 2016

By David Bates

Well here we are, just two weeks away from the end of another calendar year.

As our federal politicians return to their constituencies and most (but certainly not all) businesses begin to wind down, it’s timely to look back and see what was – and wasn’t – achieved on the industrial relations front in 2016.

First - the good news.

The two rejected bills which took us to an unexpected double dissolution election – the Registered Organisations legislation and the law re-establishing the Australian Building and Construction Commission (ABCC) – were both finally approved by the Senate.

AAP

Sadly, that’s where the good news ends. Because while the Registered Organisations changes were long-overdue, the ABCC legislation was significantly weakened by amendments which rewarded big construction firms like Lendlease that signed up to union-friendly Enterprise Agreements despite knowing full well that a new – and much tougher Code –  was on its way.

Instead of holding these companies and the CFMEU to account, the government allowed a two-year lead-in period, meaning when they lose the next election and Labor is returned to power, all this hard work will ultimately have been for nothing.

This from a government which claims to support free enterprise and oppose union thuggery. Go figure.

More bad news came our way in the form of the 7-Eleven wages scandal. As events unfolded, we discovered it wasn’t just dodgy employers who were ripping off employees. It turns out that plenty of well-meaning employers were unintentionally underpaying their employees due to genuine confusion about the world’s most hopelessly complex employment laws.

This year, we also discovered Coles had signed an Enterprise Agreement with one of the nation’s largest unions – the SDA – which resulted in more than 30,000 mostly part-time and casual employees losing some of their penalty rates to help fund wage increases for those full-time employees who more likely to be union members.

AAP

This Agreement should never have been approved by the Fair Work Commission in the first place, and it took a lot of time – and many angry employees – to finally have it overturned. Remember this case the next time you hear a union claim that it supports penalty rates.

And last but not least, 2016 was the year that gave us the embarrassing spectacle that was the long-overdue resignation of Fair Work Commission Vice-President, Michael Lawler. His departure finally concluded a saga which has caused immense damage to the Commission’s reputation.

Here’s hoping 2017 is a better year for Australia’s employers and its honest, hard-working employees.

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How the FWO let you down … again

Wednesday, December 07, 2016

By David Bates

In February this year, the team here at Workforce Guardian became aware of a competitor signing up new customers by implying their service was either endorsed by - or somehow linked to - the Fair Work Ombudsman (FWO). 

It was a clever strategy, which generally involved one of two cleverly designed sales tactics. 

The first sees them cold-calling employers and introducing themselves as being from ‘Fair Work’. Because this is a generic term (as opposed to the ‘Fair Work Ombudsman’ or the ‘Fair Work Commission’) they get away with creating the false impression they are calling from one of these two official government agencies.

They then ask the employer for a meeting to discuss their potential non-compliance with Australian employment laws. The hapless employer – concerned about their potential liabilities – agrees to meet with ‘Fair Work’. 

A short time later, a representative from a private HR business arrives at the workplace, as agreed. They confirm they have been sent by ‘Fair Work’ and, at the end of the ‘meeting’, the employer is asked to sign an expensive, multi-year subscription (including insurance) which will give ‘complete peace of mind’. Thinking the service is endorsed by the Commonwealth Government, the employer signs on the spot.

The second strategy involves operating a number of generic ‘Fair Work Information Lines’, which employers mistakenly call instead of the official Fair Work Infoline operated by the FWO. 

After callers have received some preliminary advice (sometimes given by unqualified and inexperienced ‘consultants’) they are offered an introduction to an HR service which is recommended by ‘Fair Work’. 

These practices are scandalous.

When we began hearing from frustrated employers who felt they had been misled, we immediately contacted the FWO. We expected they’d put out a press release or, at the very least, publish a generic message on their web site reminding employers that the FWO does not endorse any private HR business.

But they didn’t. 

And for the last nine months we have been contacted by countless employers who have signed up to an HR service under the genuine – but completely mistaken – belief that it was recommended or endorsed by the FWO. 

These employers are understandably appalled, disappointed and very angry. And so are we.

While we have no doubt the FWO made their concerns known to the company involved and took steps to have them change their ways, there’s also no doubt they did absolutely nothing to warn the public about their deceptive and misleading conduct. 

As a result of the FWO’s public silence, hundreds – perhaps thousands – of employers have signed multi-year contracts with the company in question.

If only the FWO would spend as much time, energy, and tax-payer’s money assisting employers as they do prosecuting them. The FWO has, once again, let every law-abiding employer down very badly.

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