By David Bates

The Australian Industry Group (AIG) has this week joined the growing number of employer associations and unions calling for changes to be made to the Fair Work laws. Broadly speaking, the former want more flexibility in employer-employee relations, while the latter would prefer there was less flexibility.

But both sides continue to miss one absolutely fundamental point: reforms of any kind can - and should - wait until we’re consistently enforcing the laws we already have. I’ll use a practical example to explain my point.

Under the Fair Work Act 2009, an employee is protected from ‘unfair dismissal’ (and is accordingly eligible to pursue a claim relating to an alleged unfair dismissal with the Fair Work Commission - FWC) only after they have completed the applicable ‘minimum employment period’. In businesses with fewer than 15 employees the minimum employment period is 12 months, while in all others it’s 6 months.

So let’s assume you hire a new employee tomorrow, but then decide within a week they’re not the right person for your business. You might be thinking you don’t need to worry about an unfair dismissal claim because they haven’t yet completed the minimum employment period. Think again.

While it’s true the employee is not legally entitled to pursue their claim, there is absolutely nothing to stop them lodging the claim anyway. Once the claim has been received, the FWC will list the matter for conciliation, during which the employer will generally be asked if they want to reach a ‘settlement’ (that is, pay the employee ‘go away money’ in return for them dropping the claim).

This is a completely unacceptable situation, but fixing it doesn’t require major ‘reform’, an expensive inquiry, or even ‘stakeholder consultation’ - it just requires the FWC to be told to enforce the law as it is currently written. Claims lodged by employees who are not protected from unfair dismissal should simply be rejected. It’s not rocket science.

This is just one example of the existing laws not being properly enforced – there are plenty more. For example, did you know that the Fair Work Act 2009 abolished ‘union Enterprise Agreements’ and instead requires all new Enterprise Agreements (apart from Greenfield Agreements) to be made only between an employer and their employees directly?

This means that under the current laws, unions have been relegated to the role of ‘bargaining representatives’, and they should be treated accordingly – no more or less powerful or important that the employer’s own appointed bargaining representative. It’s a shame most employer associations still treat unions as though they are somehow ‘special’.

Don’t get me wrong, I support changes to Australia’s hopelessly complex employment laws. But let’s at least properly enforce the laws we have right now before we begin (yet!) another round of changes.