By David Bates

To borrow a famous phrase, 2015 has been employment law’s annus horribilus. 

As we wind down now towards the Christmas/New Year break, I thought it timely to reflect on the top three things we (unfortunately) learned about Australia’s so-called Fair Work system over the past 12 months.

1. The Review of Modern Awards is Hopeless (and Never-Ending)

The Fair Work Act 2009 requires the Fair Work Commission (FWC) to conduct a review of the nation’s Modern Awards every four years. The first ‘4 year review’ accordingly began in early 2014 but is, sadly, still going.

You read that right: the review has now been running for 2 years. By the time it ends, there will only be another 1.5 years or so to go until the next 4 year review is due to begin.

On the bright side, the simple fact the review has taken this long proves one thing beyond any doubt: anyone who claims Australia’s employment laws aren’t hopelessly complex is hopelessly out-of-touch.

2. The Fair Work Commission is Not Fit for Purpose

As if the above-mentioned Modern Awards review wasn’t enough, this year the Commission also brought us the Vice President Michael Lawler scandal. FWC VP Lawler took just over nine months of fully-paid sick leave (on his annual salary of $435,000), during which he assisted in representing his partner, former union official Kathy Jackson. 

Ms Jackson has now been found to have misappropriated finds from her former union, and has been ordered to pay $1.4 million in compensation.

Vice President Lawler’s conduct – legal thought it was – appears to have further damaged the FWC’s already fragile credibility.

Incidentally, we now know beyond doubt that Vice President Lawler enjoys an unlimited paid sick leave entitlement. How do we know this? The Vice President helpfully – and secretly – recorded his conversation with FWC President, Justice Iain Ross, using a rather interesting technique he demonstrated on the ABC’s Four Corners program(!). Yes, really. 

3. The Fair Work Ombudsman Needs Urgent Reform

The nation’s other Fair Work agency – the Fair Work Ombudsman (FWO) – also let us all down in 2015. Here are just two examples of how they’ve allocated tax payer money that should make your blood boil.

First, they launched an ‘on-line quiz’ to help employers discover just how much they don’t know about Australia’s (hopelessly complex – see above) employment laws. That the FWO appears to genuinely believe that Australia’s business owners have enough time in their day to play an online quiz is as staggeringly wrong as it is incomprehensible.

Second, they began asking others for their opinions about how Australia’s employment laws should be interpreted and applied. Yes, the agency responsible for investigating employers, fining then, and initiating prosecutions now asks others how they think the laws should work. 

Imagine being pulled over for speeding only to then be asked by the officer whether you think the speed limit is correct and can or should be enforced. Or imagine being investigated by the ATO,  and then learning they’ve asked accountants and ‘key stakeholders’ in an online forum whether they believe the ATO is interpreting the tax law correctly.

Yes ladies and gentlemen, an annus horribilus indeed.