by David Bates

This week I’d like to share with you a story few will actually believe is true. But sadly it is. It’s a story of woe and frustration, of anger and disbelief. Yes, that’s right, another story about the Fair Work laws and how they continue to fail employers, employees, and our country.

The company I lead, Workforce Guardian, partners with many industry and employer associations to provide their members with access to accurate, practical, and plain-English HR advice and support. One of those associations is the Post Office Agents Association Limited (POAAL). They represent the countless small business owners around Australia – many from non-English speaking backgrounds – who run our local post offices and generally make our lives that much easier by providing essential postal service to people like you and me.

The postal services sector has, since 2003, been covered by an Award called the Postal Services Industry Award 2003. Because this is an ‘enterprise Award’ it continued to operate even after the new Modern Awards commenced back in 2010. It was due to expire on 31 December 2013 but, thanks to a ‘modernisation application’ lodged by the Comunications, Electrical and Plumbing Union (CEPL) the Award’s operation was extended until such time as the Fair Work Commission dealt with the application.

Unfortunately, a few weeks ago, the CEPU decided to withdraw its application. POAAL immediately wrote to the FWC expressing its serious concerns – on behalf of POAAL members – about the irreversible consequences the union’s withdrawal of the application would have on post office licensees. The most significant impact would be the immediate, and unexpected, application of the General Retail Industry Award 2010 to most employees previously covered by the Postal Services Award 2003. This new Award is very different from the old Award, and post office licensees would have no warning of its immediate application to their business.

Nonetheless, on 9 August, the FWC allowed the union’s application to be withdrawn. When POAAL immediately sought the Commission’s confirmation of the effect of their decision, the Commission wrote back, saying: "…it is not the function of the Fair Work Commission to give advice as to the effect of its decisions, or the actions of others…". Shame that that Commission’s own website promises the Commission will be both ‘informative’ and ‘helpful’.

So, we immediately sought urgent advice from the Fair Work Ombudsman (FWO) which, while doing its best to assist, ultimately referred the question back to the not-so-helpful Commission. Can you guess what happened next? Nothing. Three weeks of no response whatsoever from the Commission. Eventually, in desperation, we asked the FWO to confirm its own opinion, which they did almost immediately. Though, of course, their opinion is not legally binding.

So for three weeks, post office licensees around Australia have likely been in breach of many provisions of the Fair Work laws because no one in charge of the Fair Work system could simply confirm which Award applied to their business as a result of a decision made by the Fair Work Commission. You’d laugh if it wasn’t so serious.

Honestly, can you think of anywhere else in the developed world where employment laws are so hopelessly and deliberately complex? Is it any wonder employers simply throw their hands up in the air and just declare it all ‘too hard’? We simply should not accept a system that allows for such uncertainty, unaccountability, and confusion. This system is a disaster.