Bosses attack ‘farcical, hopeless’ small business review

Employers fuming after Fair Work Ombudsman refused to state an opinion about whether the current small business definition was appropriate.

The review by Fair Work Ombudsman Anna Booth is under attack by business. Picture: NewsWire / Martin Ollman

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Employers have labelled a Fair Work Ombudsman review into the definition of small business as “farcical and hopeless” after the workplace regulator refused to state an opinion about whether the current arrangements were appropriate.

The government agreed to the review as part of a deal with the Senate crossbench to pass Labor’s workplace laws, with then minister Tony Burke asking the FWO Anna Booth a year ago to determine if the small business definition of fewer than 15 employees remained “fit for purpose” and, if not, to recommend how it could be improved. Labor and the union movement had wanted no change to the definition, but employer groups had pushed for the headcount for a small business to be increased to up to 50 employees.

In its report released on Wednesday, the FWO did not make any findings about whether the definition was fit for purpose.

“Given the FWO’s statutory role as an impartial workplace regulator, we have undertaken consultation to identify any areas of agreement to inform potential options that reflect the shared views of stakeholders,” it said.

“In the absence of agreement and in light of significant differences in some cases, consistent with the FWO’s impartial role, the ­review has not advocated for any one stakeholder view over another. Instead, it has presented the views of stakeholders and identified key issues for further consideration by government.”

The FWO said “given the ­divergency of stakeholder views on the need for, and how to ­improve the small business ­employer definition, the government may wish to consider undertaking further work to evaluate possible options”.

Slamming the review as a “whitewash”, Australian Chamber of Commerce and Industry chief executive Andrew McKellar said “the process has been a pitiful sham”. “The government asked them to advise on whether or not the definition remains appropriate,” he said. “They haven’t ­answered that. They have tried not to answer it.

“It’s utterly hopeless. They have completely squibbed it. What is the point of going through a process like that if you can’t reach a conclusion? They should either say that the definition, as it stands, is adequate or is not adequate. We would say it’s not adequate. This really vacates all responsibility. It’s hopeless.”

Mr McKellar said if the FWO had come to view that it could not take a definitive position after months of receiving submissions, it should have handed the brief back to the government to get ­another body such as the Productivity Commission to do the review and make frank and fearless recommendations.

“From our point of view, there was a clear commitment coming out of the parliamentary and legislative process, the government said it would do this. Now we have the Fair Work Ombudsman basically handing back the brief, saying, ‘Sorry, the dog ate our homework’,” he said

“They’ve said, ‘Sorry we’re an impartial workplace regulator, we can’t give you a definitive view, we’re just going to summarise a bunch of submissions’. Honestly, I think it’s wholly inadequate, it’s been an abject waste of time and resources on everyone’s part and, at the end of the day, it’s small business that’s going to carry the can. So I think, honestly, it’s hopeless. It’s farcical.’

ACTU secretary Sally McManus said the FWO review had “refused to support the bid by employer groups to take away small business workers’ entitlements, such as unfair dismissal protection”. She said lifting the small business threshold up to 50 workers would have removed ­entitlements for up to two million Australian workers.

“Employers’ arguments would have stripped away rights from some of our most vulnerable workers, such as visa holders, young workers, apprentices and trainees,” she said

Senate crossbencher David Pocock said it was “extremely disappointing that the review has put forward no solutions to a genuine problem”. Given there were more than 30 definitions of what small business means across commonwealth legislation, “there is clearly a case to simplify and streamline”, he said.

“If the government is serious about lifting productivity, small business is a great place to start,” he said.

Minister for Employment and Workplace Relations Amanda Rishworth said the government accepted the review by the “independent” FWO and would continue to consult with unions and employers. “I understand the report reflects the views of all stakeholders involved, and I thank those stakeholders for their contributions. It is clear that consensus was not reached amongst stakeholders,” she said.

Council of Small Business ­Organisations Australia chief executive Luke Achterstraat, who had advocated for a 50 full-time employee headcount, said the review had been a “real chance to create clarity, reduce red tape and unlock growth, but instead we’re left with a definition that continues to penalise ambition”.

“One has to wonder whether this review was commissioned in good faith or whether it was window dressing, with a foregone conclusion pre-decided at the outset,” he said.

Opposition small business spokesman Tim Wilson said the FWO review was “just another reminder that small business is an afterthought under the Albanese government”.

“All Fair Work’s indifference highlights is how government-led reform is needed to help small business grow, because the institutions of government aren’t on the side of Australians in small business”, he said.