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07 August 2019

Correcting the record on Small Business Fair Dismissal Code

The Review of the Small Business Fair Dismissal Code released by the Australian Small Business and Family Enterprise Ombudsman, Kate Carnell yesterday is about making the current Code work the way it was originally intended.

Clarification on the points made by the Secretary of the ACTU yesterday:

 

ACTU: Working people have a right to be protected from unfair and arbitrary sacking.

ASBFEO: Employees do have rights and the proposed changes do not impact at all on those rights; the changes focus on the obligations of the employers to their employees.

 

ACTU: This latest report from the mis-named ‘Small Business Ombudsman’ simply confirms that the Morrison Government is using taxpayers money to fund an employer advocacy group to attack workers’ rights.

ASBFEO: The Ombudsman position was set up under the Australian Small Business and Family Enterprise Ombudsman Act 2015.

Division 2 – Research and inquiries on Ombudsman’s own initiative

36  Research and inquiries

The Ombudsman may, on the Ombudsman’s own initiative, conduct research or make inquiries into:

  1. the effect of relevant legislation, policies and practices on small businesses or family enterprises, or a class of small businesses or family enterprises; and
  2. ways in which relevant legislation, policies and practices might be improved to assist small businesses or family enterprises, or a class of small businesses or family enterprises.

Forward with Fairness: Labor’s plan for fairer and more productive Australian workplaces states “The Code will be tailored to the needs of small business and will be reduced to a clear and concise reference to help these employers meet their obligations under Labor’s simpler unfair dismissal system. Where a small business employer has genuinely complied with the Code, the dismissal will be considered a fair dismissal”.

The review of the Code seeks to ensure the Labor government’s vision for the Code, introduced in 2009, is realised.

 

ACTU: This report is a blueprint undermining the rights of working people and letting bosses fire them for any reason or no reason.

ASBFEO: The proposed changes to the Code do not change the rights of working people or extend the basis on they can be dismissed; they are to help small business owners understand how to comply with the Code and to ensure any dismissal is conducted fairly and in accordance with the Fair Work Act.

 

ACTU: It suggests that the independent umpire should help bosses who want to do this – this is a dangerous and irresponsible suggestion.

ASBFEO: The Fair Work Commission has stated on many occasions that the Small Business Fair Dismissal Code in its current form does not work as it was intended to. The ASBFEO’s review has a number of examples from Fair Work Commission cases in Appendix G that demonstrate the confusion around, and difficulty interpreting, the Code as it stands.

The review does not suggest that any assistance should be provided to employers who want to do the wrong thing by their employees. The review does suggest ways that the system can be simplified to ensure better clarity for all parties.

 

ACTU: The proposals this report contains would make jobs even more insecure than they currently are.

ASBFEO: If small business employers are confident that if they comply with the Code, the dismissal will be deemed to be a fair dismissal, they will be more likely to employ permanent staff. If they are worried about unfair dismissal claims, they are more likely to employ casuals or contractors.