This inquiry examined certain aspects of the Fair Work Commission Annual Report 2019-20. In particular, how policy responses designed to manage the COVID-19 pandemic have impacted and may continue to impact the Commission’s caseload, including: vaccine mandates, shutdowns, lockdowns, self-isolation and quarantine requirements, and inconsistencies between the public health orders of the states and territories.
The Commission’s caseload increased by eight per cent during 2019-20, with significantly more unfair dismissal applications and workplace disputes than in other years associated with the beginning of the pandemic. The Committee found that the JobKeeper program and the temporary variation of industry awards provided flexibility in workplaces and prevented a larger surge in applications to the Commission. The responses of Australian, state, and territory governments to COVID-19 were largely successful in safeguarding the health of Australians while encouraging businesses to continue trading and retain staff.
While governments had to implement policies quickly to keep Australians safe and to preserve jobs and incomes, state and territory public health orders were often implemented at short notice and inconsistencies between jurisdictions made it difficult for businesses and workers to know what their rights and responsibilities were. Australian governments should strive to provide clear, consistent, and timely advice to employers and employees about policies that may give rise to workplace disputes.
Vaccine mandates helped protect vulnerable Australians in high-risk settings, encouraged higher vaccination rates, and provided greater certainty to businesses about their rights and obligations to their employees and customers. However, many Australians who did not want to have a COVID-19 vaccine lost their jobs because of mandates in certain sectors. The issue of vaccine mandates is polarising, and it is likely the Commission will need to deal with further unfair dismissal applications and workplace disputes relating to vaccine mandates going forward.
Despite the surge in its caseload, the Commission provided guidance and resolved issues in a timely manner by mobilising resources and digital tools, and with the assistance of additional Australian Government funding. The Committee was satisfied the Commission is well placed to mobilise strategies and resources in the event there is another peak in its caseload.
The Fair Work system can be costly and time consuming to navigate, and the availability of accessible information and advice is crucial for ensuring fair outcomes for employers and employees. The Fair Work Ombudsman has the central role in providing education and advice on matters related to the operation of the Fair Work Act 2009. While the Commission is limited in its ability to give guidance and advice in relation to the Act, it provides up to one hour of free legal assistance to eligible employees and employers on a range of topics. However, this may not be enough time to help Australians navigate complex workplace issues, particularly in the context of COVID-19.
The Australian Government could consider a mechanism that would allow the Commission to dismiss vexatious claims as a way of reducing time and cost to businesses in responding to claims that are clearly without merit, with appropriate safeguards to protect the rights of employees.
On behalf of the Committee, I would like to thank those who contributed written submissions to the inquiry, and who participated at hearings.
Mr Andrew Laming MP
Chair