Natalie Gaspar, Herbert Smith Freehills
Natalie Gaspar, Herbert Smith Freehills

The Coalition Government has a "generational opportunity" to make enduring and significant changes to Australia's industrial relations system, according to a workplace lawyer.

Currently, the Fair Work Act and actions taken by the Fair Work Commission frequently tend towards over-prescription and technicality, Herbert Smith Freehills partner Natalie Gaspar tells an HR Daily Premium webcast.

"This is despite the fact that the Commission is required by the Fair Work Act to perform its functions quickly, informally, and to do so by avoiding unnecessary technicalities. It's quite time consuming, and that's not good for businesses or their employees," she says.

If the Morrison Government can "shake off the ghost" of what is remembered as "Work Choices overreach", Gaspar says it has a "generational opportunity to advance a case for a modified system which is underpinned by the objective of making workplaces more productive and less combative".

Attorney-General and Minister for Industrial Relations Christian Porter is conducting a review of Australia's industrial relations laws, and insists that the Coalition has a mandate to improve the system.

The priority areas for the Coalition Government, which Gaspar explores in the full webcast, include a review of the EA approvals process; casual employment; national labour hire regulation; ABCC, the Building Code and ROC; freedom of religion; responses to the Migrant Workers' Taskforce report; and regulation of unions.

EA approvals too technical

The EA approvals process is currently characterised by a great deal of technicality, Gaspar says. "Gone are the days when the trickiest part of negotiating an enterprise agreement was negotiating with unions and employees to reach a mutually accepted deal."

The Commission is "scrutinising in a way that we've not previously experienced", she notes.

"Both sides of the political divide recognise that this is a process that is taking too long, and it is hampering, it's fair to say, the productivity gains, and for employees, the passing on of wage increases that might have been negotiated through the enterprise bargaining process."

The Coalition's review of the EA approvals process is looking initially at two aspects, Gaspar says.

The first is ensuring that the safety net is not undermined, and that includes ensuring things like the National Employment Standards and the Better Off Overall Test are appropriately administered.

"The second aspect of this is, in a very welcome comment, ensuring that any unnecessary red tape is removed. This is about reintroducing some efficiency in the system as much as possible, without compromising the assurance that employees are actually going to be better off overall."

Casual employment a key space to watch

Another of the Coalition's industrial relations priorities is casual employment, Gaspar says, and this is one to watch closely because "there is still a great deal of uncertainty in this space".

Elements at play include the conversion of casuals to permanent full-time or part-time employment, as well as offsetting casual loading entitlements against permanent features of employment.

There is also discussion around whether the Fair Work Act should include a definition of 'casual employee', "so we'll wait to see what comes of that".

Gaspar delves into each of the Coalition Government's priority areas and also outlines key considerations for employers in the full webcast, accessible with HR Daily Premium membership – upgrade here if you're not a premium member.