Fair Work Australia
17 February, 2012
Re: Fair Work Act, 2009 Review
On behalf of the Members of Hair and Beauty Australia and the Hair and Beauty Industries, I make
the following submissions pertaining to the review of the Fair Work Act, 2009.
General Industry Information:
1. As at September 2011, the Hair and Beauty Industry consisted of approximately 73,800
people (0.7% of the total workforce).1
2. DEEWR projections indicate an average annual increase in employment to 2015 of 3.6% for
beauty therapists and 2% for hairdressers2.
3. In 2007, 69% of the businesses in this industry were small businesses, employing less than 20
4. In 2008 the hairdressing and beauty sectors employed over 84,000 people (88% female), of
which approximately 45% worked part time4 and the median age of employees in the
hairdressing sector was 29 years and in the beauty sector 30 years5.
5. The number of employees in the Hair and Beauty Industries has fallen by 10,200 employees
since the introduction of the Fair Work Act, 2009 from 84,000 in 2008 to 73,800 in 2011, a
decrease of 12.14%.
1 IBIS World Industry Report Q9526 Hairdressing and Beauty Salons in Australia, September 2011.
1 Based on ABS 8165.0 Counts of Australian Businesses, including Entries and Exits, Jun 2003 to Jun 2007; please note
that these figures are based on the information provided by the company to the ATO when they register for an ABN. Prior
to 1st July 2007, businesses with turnover of at least AUD50,000 per annum (AUD100,000 in the case of non-profit
organisations) were required to register for an ABN and remit GST. Businesses with turnover under AUD50,000 were able
to voluntarily register and these voluntarily-registered businesses are included in the counts. Please note that feedback to
SSA indicated that this figure is too low
4 ABS 6291.0.55.003 - Labour Force, Australia, Detailed, Quarterly, Feb 2008, table 6291.0.55.003 E15_AUG06 – Employed
persons by Sex, Industry (ANZSIC06), State, Status in Employment; part time is defined as working less than 35 hours per
week in all jobs and can be permanent or casual;
5 IBIS World, Hairdressing and Beauty Salons in Australia: Q9526, 24 September 2008
6. In 2011, 6-8% of businesses in the Hair and Beauty Sector failed or closed. The main cause
for business closure recorded was high payroll costs, staffing issues and burdensome
7. The June 2011 DEEWR Skills Shortage report has again identified the occupation of
hairdresser as being in shortage. The average number of applicants per vacancy is 12 in
2010-11, compared to 2.6 in 2006-07. However, the number of suitable applicants per
vacancy has remained constant (0.8).7
8. The average unemployment rate has increased by 1.54% since the introduction of the Fair
Work Act, 2009 from 4.21% in 2008 to 5.75% in 2011 (yearly averages).8
Terms of Reference
Hair and Beauty Australia proposes that the submissions made in this applications are based on
inconsistencies between the Fair Work Act, 2009 as it currently operates and the objectives of the
Act set out in Section 3. Specifically, I submit that the following objectives have not been achieved:
The object of this Act is to provide a balanced framework for cooperative and productive
workplace relations that promotes national economic prosperity and social inclusion for all
(a) providing workplace relations laws that are fair to working Australians, are flexible for
businesses, promote productivity and economic growth for Australia’s future economic
prosperity and take into account Australia’s international labour obligations; and
(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and
conditions through the National Employment Standards, modern awards and national
minimum wage orders; and
(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum
wages and conditions can no longer be undermined by the making of statutory
individual employment agreements of any kind given that such agreements can never be
part of a fair workplace relations system; and
(d) assisting employees to balance their work and family responsibilities by providing for
flexible working arrangements; and
(e) enabling fairness and representation at work and the prevention of discrimination by
recognising the right to freedom of association and the right to be represented,
protecting against unfair treatment and discrimination, providing accessible and
effective procedures to resolve grievances and disputes and providing effective
compliance mechanisms; and
(f) achieving productivity and fairness through an emphasis on enterprise-level collective
bargaining underpinned by simple good faith bargaining obligations and clear rules
governing industrial action; and
(g) acknowledging the special circumstances of small and medium-sized businesses.
Service Skills Australia Environmental Scan 2012, Beauty & Hairdressing
ABS Labour Force Statistics, Monthly January 2008- December 2011
1. Removal of the reverse onus of proof under s 361 for small businesses as defined by the
Act (less than 15 employees)
The inclusion of s361 of the Act is in direct contravention of the principles of Natural Justice
and refutes the objective of the Act to provide a balanced framework for cooperative and
productive workplace relations.
The Act states:
361 Reason for action to be presumed unless proved otherwise
(a) in an application in relation to a contravention of this Part, it is alleged that a
person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a
contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being,
taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction
This section of the Act imputes unsubstantiated bias against the employer at the
commencement of a claim in the absence of consideration of any evidence. It is not
commensurate with the adversarial system of law under which Australia is operating and is
having a crippling effect on small businesses in our industry.
Presumably, the inclusion of s361 in the Act was intended to provide protection for
employees who may not have the resources to collect evidence to substantiate claims
against employers. While Hair and Beauty Australia acknowledges that larger businesses
may have access to greater resources in order to defend actions against them, small
businesses possess no advantage over employees in relation to the availability of
information and resources when defending claims.
The employees have greater access today to information on their employment rights and
entitlements than any other period of employment in Australia. The accessibility of the
internet, Fair Work Ombudsman resources, Union membership and private consultation
means that employees have all of the required information to understand and pursue the
protection of their employment rights.
Operators of Small Businesses (96% of Australian businesses) are often time and resource
poor and specialise in the services of their business and industry. They are not qualified
human resources practitioners, industrial relations specialists or legal professionals. It is
therefore not unreasonable that the requirements of running the operations of their
businesses overrides the priority of recording and collecting physical evidence for potential
claims or actions that may or may not be brought against them at a future date.
Hair and Beauty Australia contends that the presumption of guilt on the employer at the
outset of any claim made by an employee places an unfair burden on small businesses and
creates an inequitable workplace relations system that does not follow the principles of
Natural Justice . As strict rules of evidence do not apply in Fair Work Australia,
Commissioners have the prerogative of taking an inquisitorial approach to the evidence
provided by parties to the grievance. It would be more appropriate in the absence of
evidence, testimonial or otherwise, for the Commission to engage this approach rather than
presume guilt on behalf of the employer.
Hair and Beauty Australia submits that s361 of the Act should be rescinded in order to
maintain the objectives of the Act to “provide workplace relations laws that are fair to
working Australians, are flexible for businesses, promote productivity and economic growth
for Australia’s future economic prosperity and take into account Australia’s international
2. Representation by Employer Associations in all industrial courts and tribunals including
Small Claims Tribunal – Equal representation between employer associations and Unions
Section 548 of the Act allows:
Plaintiffs may choose small claims procedure
(1) Proceedings are to be dealt with as small claims proceedings under this
(a) a person applies for an order (other than a pecuniary penalty order) under
Division 2 from a magistrates court or the Federal Magistrates Court; and
(b) the order relates to an amount referred to in subsection (1A); and
(c) the person indicates, in a manner prescribed by the regulations or by the
rules of the court, that he or she wants the small claims procedure to apply
to the proceedings.
(1A) The amounts are as follows:
(a) an amount that an employer was required to pay to, or on behalf of, an
(i) under this Act or a fair work instrument; or
(ii) because of a safety net contractual entitlement; or
(iii) because of an entitlement of the employee arising under subsection 542(1);
(b) an amount that an outworker entity was required to pay to, or on behalf of,
an outworker under a modern award.
Representation by an industrial association
(8) The regulations may provide for a party to small claims proceedings to be
represented in the proceedings, in specified circumstances, by an official of
an industrial association.
(9) However, if small claims proceedings are heard in a court of a State, the
regulations may so provide only if the law of the State allows a party to be
represented in that court in those circumstances by officials of bodies
representing interests related to the matters in dispute.
Hair and Beauty Australia submits that as the matters refer directly to the
employer/employee relationship under the Act, Employers should be entitled to full
representation by an Industrial Association (both employee and employer associations
equally)registered under the Fair Work (Registered Organisations) Act, 2009 in the
Small Claims jurisdiction.
Representation for both parties will ensure the objectives of the Act to “enable fairness
and representation at work and the prevention of discrimination by recognising the
right to freedom of association and the right to be represented, protecting against
unfair treatment and discrimination, providing accessible and effective procedures to
resolve grievances and disputes and providing effective compliance mechanisms” is
On behalf of the Members of Hair and Beauty Australia, I would like to thank the Review Panel in
advance for their consideration of these submissions.