DOCSLIB.ORG

Submission to the Post Implementation Review of the Fair Work Act 2009

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Submission to the Post Implementation Review of the Fair Work Act 2009 Submission to the Post Implementation Review of the Fair Work Act 2009 17 February 2012 Volume 1 About the ACTU The Australian Council of Trade Unions is the nation’s peak body for organised labour, representing Australian workers and their families. ACTU Level 6, 365 Queen Street Melbourne VIC 3000 www.actu.org.au Authorised by Jeff Lawrence, Secretary The Working Australia Papers The Working Australia Papers are an initiative of the ACTU to give working people a stronger voice about social and economic policy. Although low and middle income Australians ultimately bear the costs of poor policy decisions made in relation to tax, infrastructure, retirement incomes, welfare and services, their voice is too often absent from national debates about these issues. Working Australia Paper 2/2012 ACTU D No. 6/2012 Contents Volume 1 — SUBMISSION Introduction .............................................................................................................................. 1 The proper approach to the review ............................................................................................ 1 The legislative and policy context ............................................................................................... 2 The ACTU submission .................................................................................................................. 4 The evolution of federal workplace relations laws.................................................................... 6 Promoting productivity and economic growth ........................................................................ 11 Employment .............................................................................................................................. 11 Employment by State ............................................................................................................ 17 Employment by industry ....................................................................................................... 19 Unemployment by age .......................................................................................................... 21 Long-term unemployment .................................................................................................... 22 Wages ........................................................................................................................................ 24 Average wages growth ......................................................................................................... 24 Productivity growth .................................................................................................................. 26 Real unit labour costs ............................................................................................................ 29 Factor shares of income ............................................................................................................ 30 Industrial disputes ..................................................................................................................... 31 Impact on award-dependent businesses .................................................................................. 33 Conclusion ................................................................................................................................. 34 Ensuring a guaranteed safety net ............................................................................................ 35 Wages ........................................................................................................................................ 35 Wage-related entitlements ....................................................................................................... 36 Individual Flexibility Arrangements .......................................................................................... 37 Insecure Work ........................................................................................................................... 38 Conclusion ................................................................................................................................. 39 An emphasis on collective bargaining ..................................................................................... 40 Good faith bargaining ........................................................................................................... 40 Restrictions on agreement parties ........................................................................................ 40 Restrictions on agreement content ....................................................................................... 42 Restrictions on taking protected industrial action ................................................................ 43 Conclusion ................................................................................................................................. 43 Enabling representation at work ............................................................................................. 44 Resolving grievances and disputes .......................................................................................... 45 Award-dependent enterprises .................................................................................................. 45 Agreement-covered workplaces ............................................................................................... 45 Resolving bargaining disputes ................................................................................................... 46 Conclusion ................................................................................................................................. 47 Protection against unfair treatment ........................................................................................ 48 Unfair dismissal ......................................................................................................................... 48 Unlawful dismissal .................................................................................................................... 49 Sham contracting ...................................................................................................................... 50 Conclusion ................................................................................................................................. 51 The institutional framework ................................................................................................... 52 Fair Work Australia ................................................................................................................... 52 Fair Work Ombudsman ............................................................................................................. 52 Fair Work Divisions of the courts .............................................................................................. 52 Conclusion ................................................................................................................................. 53 Impact on women workers ..................................................................................................... 54 Balancing work and family responsibilities ............................................................................... 54 Protection from discrimination ................................................................................................. 54 Equal remuneration .................................................................................................................. 55 Low pay and insecure work ...................................................................................................... 55 Conclusion ................................................................................................................................. 56 Appendix 1 – Further reforms ................................................................................................. 57 Appendix 2 — Technical Issues................................................................................................ 59 Glossary .................................................................................................................................. 67 Volume 2 — SUPPORTING MATERIAL 1. ACTU, The Fair Work Act: Two Years On (2011) 2. ACTU, Submission to Senate EEWR Committee Inquiry into the Fair Work Bill 2008 (2009) 3. ACTU, ‘Working by Numbers: Separating Rhetoric and Reality on Australia’s Productivity’ (2011) 4. ACTU, Submission to Productivity Commission Inquiry into the Economic Structure and Performance of the Australian Retail Industry (2011) 5. ACTU, Response to Draft Productivity Commission Report on the Economic Structure and Performance of the Australian Retail Industry (2011) Introduction The ACTU is the peak trade union body in Australia, representing almost 2 million workers. When the Fair Work Act commenced on 1 July 2009 it was the culmination of the long campaign for all Australians to repeal Work Choices and restore rights at work. Restoring rights at work meant ending AWA individual contracts; restoring unfair dismissal protections; strengthening the safety net; providing good faith bargaining; and improving the independent umpire’s role in resolving disputes. Australians unions play a pivotal role in improving the living standards of millions of Australians and their families. Industrial legislation is a critical component of this work — it is a key to ensuring that
Load more

Recommended publications
  • Right to Freedom of Association in the Workplace: Australia's Compliance with International Human Rights Law
    UCLA UCLA Pacific Basin Law Journal Title The Right to Freedom of Association in the Workplace: Australia's Compliance with International Human Rights Law Permalink https://escholarship.org/uc/item/98v0c0jj Journal UCLA Pacific Basin Law Journal, 27(2) Author Hutchinson, Zoé Publication Date 2010 DOI 10.5070/P8272022218 Peer reviewed eScholarship.org Powered by the California Digital Library University of California ARTICLES THE RIGHT TO FREEDOM OF ASSOCIATION IN THE WORKPLACE: AUSTRALIA'S COMPLIANCE WITH INTERNATIONAL HUMAN RIGHTS LAW Zoe Hutchinson BA LLB (Hons, 1st Class)* ABSTRACT The right to freedom of association in the workplace is a well- established norm of internationalhuman rights law. However, it has traditionally received insubstantial attention within human rights scholarship. This article situates the right to freedom of as- sociation at work within human rights discourses. It looks at the status, scope and importance of the right as it has evolved in inter- nationalhuman rights law. In so doing, a case is put that there are strong reasons for states to comply with the right to freedom of association not only in terms of internationalhuman rights obliga- tions but also from the perspective of human dignity in the context of an interconnected world. A detailed case study is offered that examines the right to free- dom of association in the Australian context. There has been a series of significant changes to Australian labor law in recent years. The Rudd-Gillard Labor government claimed that recent changes were to bring Australia into greater compliance with its obligations under internationallaw. This policy was presented to electors as in sharp contrast to the Work Choices legislation of the Howard Liberal-Nationalparty coalitiongovernment.
    [Show full text]
  • 'Modern' Labor and the Fair Work Act 2009
    ‘Modern’ Labor and the Fair Work Act 2009 Challenging the male breadwinner gender order? Rhonda Sharp, Ray Broomhill and Jude Elton June 2012 i ‘Modern’ Labor and the Fair Work Act 2009 Challenging the male breadwinner gender order? Rhonda Sharp, Ray Broomhill and Jude Elton June 2012 This research forms part of an Australian Research Council (ARC) funded study: Restructuring the Australian male breadwinner model? New challenges for a rapidly changing Australia. Principal Researchers: Professor Rhonda Sharp, Hawke Research Institute, University of South Australia and Dr Ray Broomhill, Australian Workplace Innovation and Social Research Centre, University of Adelaide. Australian Workplace Innovation and Social Research Centre The University of Adelaide 230 North Terrace Adelaide South Australia 5005 www.adelaide.edu.au/wiser Published June 2012. ISBN: 978-0-9871950-7-4 Suggested citation: Sharp R, Broomhill R & Elton J. 2012. ‘Modern’ Labor and the Fair Work Act 2009: Challenging the male breadwinner gender order? Adelaide: Australian Workplace Innovation and Social Research Centre, The University of Adelaide. The Australian Workplace Innovation and Social Research Centre (WISeR) focuses on work and socio- economic change. WISeR is particularly interested in how organisational structure and practices, technology and economic systems, policy and institutions, environment and culture interact to influence the performance of workplaces and the wellbeing of individuals, households and communities. WISeR also specialises in socio-economic impact assessment including the distributional impacts and human dimensions of change on different population groups and localities. Our research plays a key role in informing policy and strategy development at a national, local and international level. CONTENTS ‘Modern’ Labor and the Fair Work Act 2009 ..................................................................................................
    [Show full text]
  • Industrial Disputes During the Rudd-Gillard Era: Comparative Perspectives and Realities
    L J Perry INDUSTRIAL DISPUTES DURING THE RUDD-GILLARD ERA: COMPARATIVE PERSPECTIVES AND REALITIES L. J Perry University of Technology, Sydney “A fly before his own eye is bigger than an elephant in the next field” — Chinese proverb ABSTRACT This paper examines industrial disputes during the Rudd-Gillard political era. Claims made in the public arena implying a steep rise in the volume of disputes are tested. The analyses of other academic researchers are updated in the light of a longer run of data being now available. Among other things, it is found that during the entirety of the Rudd-Gillard era the (per-quarter) volume of disputes was proportionately larger during the second half of the era than during the first half. Also, during the time that the Work Choices Act was operative, the (per-quarter) volume of disputes was around half of that experienced during the Rudd-Gillard era. A different perspective on these data is gleaned, however, when making longer-term comparisons. Two preceding political eras are compared: the Howard Era of 1996-2007 and the Hawke-Keating era of 1983-1996. In its entirety, the Rudd-Gillard era registered a far lower volume of disputes than that registered in the earlier eras. The long term (three-decade) decline in the volume and frequency of disputes is noted and a number of hypothesised explanatory factors are discussed. Keywords: Industrial Disputes; Strikes; Fair Work Act (2009); Rudd; Gillard INTRODUCTION The Australian Labor Party (ALP) came to office after the December 2007 federal election. A major plank in the ALP’s policy platform at the time was to repeal the existing Work Choices legislation (enacted in 2006) and replace it with legislation less antagonistic to unions and more directly protective of the rights and conditions of employees.
    [Show full text]
  • Centre for Employment and Labour Relations Law the University Of
    Centre for Employment and Labour Relations Law The University of Melbourne Student Working Paper No. 11 ADVERSE ACTION IN THE FAIR WORK ACT 2009 (CTH): A CASE OF UNINTENDED CONSEQUENCES? Jennifer Winckworth ISSN 1837-1418 The Centre for Employment and Labour Relations Law gratefully acknowledges the support of the following major legal practices and organisations: CONTENTS Adverse Action in the Fair Work Act 2009 (cth): A Case of Unintended Consequences? INTRODUCTION............................................................................................................................................................... 2 FORWARD WITH FAIRNESS AND THE NOTION OF BALANCE ................................................................ 3 LEGISLATION: THE EXPANDING PROTECTIONS .......................................................................................... 3 A The Definition of 'Adverse Action' ................................................................................................ 4 B The Consolidated Grounds of Protection .................................................................................... 5 C Reverse Onus and Multiple Reasons for Action ....................................................................... 7 D The Legislative Framework: Where has the balance been struck ................................... 7 JUDICIAL INTERPRETATION: THE BARCLAY DECISION ............................................................................. 8 A Barclay: First Instance Decision ..................................................................................................
    [Show full text]
  • The Rudd Government Australian Commonwealth Administration 2007–2010
    The Rudd Government Australian Commonwealth Administration 2007–2010 The Rudd Government Australian Commonwealth Administration 2007–2010 Edited by Chris Aulich and Mark Evans Published by ANU E Press The Australian National University Canberra ACT 0200, Australia Email: [email protected] This title is also available online at: http://epress.anu.edu.au/rudd_citation.html National Library of Australia Cataloguing-in-Publication entry Title: The Rudd government : Australian Commonwealth administration 2007 - 2010 / edited by Chris Aulich and Mark Evans. ISBN: 9781921862069 (pbk.) 9781921862076 (eBook) Notes: Includes bibliographical references. Subjects: Rudd, Kevin, 1957---Political and social views. Australian Labor Party. Public administration--Australia. Australia--Politics and government--2001- Other Authors/Contributors: Aulich, Chris, 1947- Evans, Mark Dr. Dewey Number: 324.29407 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying or otherwise, without the prior permission of the publisher. Cover design by ANU E Press Illustrations by David Pope, The Canberra Times Printed by Griffin Press Funding for this monograph series has been provided by the Australia and New Zealand School of Government Research Program. This edition © 2010 ANU E Press Contents Acknowledgments . vii Contributors . ix Part I. Introduction 1 . It was the best of times; it was the worst of times . 3 Chris Aulich 2 . Issues and agendas for the term . 17 John Wanna Part II. The Institutions of Government 3 . The Australian Public Service: new agendas and reform . 35 John Halligan 4 . Continuity and change in the outer public sector .
    [Show full text]
  • Corporate Avoidance of the Fair Work Act 2009
    The Senate Education and Employment References Committee Corporate avoidance of the Fair Work Act 2009 September 2017 © Commonwealth of Australia 2017 ISBN: 978-1-76010-633-1 This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License. The details of this licence are available on the Creative Commons website: http://creativecommons.org/licenses/by-nc-nd/3.0/au/. This document was produced by the Senate Standing Committee on Education and Employment and printed by the Senate Printing Unit, Parliament House, Canberra. ii Membership of the Committee Members Senator Gavin Marshall, Chair, ALP, VIC Senator Linda Reynolds CSC, Deputy Chair, LP, WA (from 17 August 2017) Senator Catryna Bilyk, ALP, TAS (from 22 November 2016) Senator the Hon Jacinta Collins, ALP, VIC Senator Sarah Hanson-Young, AG, SA Senator James Paterson, LP, VIC Former members Senator Bridget McKenzie, Deputy Chair, NATS, VIC (from 13 October 2016 to 17 August 2017) Senator Deborah O'Neill, ALP, NSW (from 13 October 2016 to 8 November 2016) Senator Kimberly Kitching, ALP, VIC (from 8 November 2016 to 22 November 2016) Substitute members Senator Lee Rhiannon, AG, NSW (for Senator Sarah Hanson-Young) Participating members Senator Chris Ketter, ALP, QLD Senator Louise Pratt, ALP, WA Senator Glenn Sterle, ALP, WA Senator Murray Watt, ALP, QLD Secretariat Mr Stephen Palethorpe, Secretary Ms Natasha Rusjakovski, Principal Research Officer Ms Kate Campbell, Senior Research Officer iii Mr Matthew Hughes, Research Officer Ms Amy Walters, Research Officer Ms Jade Monaghan, Administrative Officer Mr Abe Williamson, Administrative Officer Committee web page: www.aph.gov.au/Parliamentary_Business/Committees/Senate/Education_and_Employment PO Box 6100 Ph: 02 6277 3521 Parliament House Fax: 02 6277 5706 Canberra ACT 2600 E-mail: [email protected] iv Table of Contents Table of Contents ...............................................................................................
    [Show full text]
  • The Transformation of Enforcement of Minimum Employment Standards in Australia
    THE TRANSFORMATION OF ENFORCEMENT OF MINIMUM EMPLOYMENT STANDARDS IN AUSTRALIA: A Review of the FWO’s Activities from 2006-2012 Associate Professor John Howe Tess Hardy Professor Sean Cooney Centre for Employment and Labour Relations Law Melbourne Law School 2 | Page TABLE OF CONTENTS ACKNOWLEDGEMENTS ........................................................................................................................ 7 ABBREVIATIONS .................................................................................................................................... 8 EXECUTIVE SUMMARY ......................................................................................................................... 9 1. INTRODUCTION ............................................................................................................................ 29 1.1 Other Studies and Commentary .............................................................................................................. 33 1.2 Methodology........................................................................................................................................... 37 1.3 Structure of the Report ........................................................................................................................... 38 2. THEORETICAL AND COMPARATIVE PERSPECTIVES ON GOOD PRACTICE IN ENFORCEMENT ..................................................................................................................................... 41 2.1 The problem of non-compliance
    [Show full text]
  • From the Workplace Relations Act to the Fair Work Act
    746 UNSW Law Journal Volume 32(3) PROTECTIONS IN RELATION TO DISMISSAL: FROM THE WORKPLACE RELATIONS ACT TO THE FAIR WORK ACT ANNA CHAPMAN * I INTRODUCTION Over the past 15 years the statutory framework regulating fairness in dismissal has undergone much change, as parliaments have attempted to address what they see as the inadequacies of the system. This paper provides a comparison of three time periods at the federal level: the Workplace Relations Act 1996 (Cth) (‘WR Act’) before the Work Choices package of late 2005,1 the WR Act after the Work Choices package took effect, and the Rudd Government’s new Fair Work Act 2009 (Cth) (‘FW Act’), which passed both House of Parliament on 20 March 2009. Most of the termination of employment provisions in the FW Act commenced on 1 July 2009, with the remainder (namely those in the National Employment Standards) expected to commence on 1 January 2010. The objective of this article is to provide an overview of the continuities and discontinuities over these three periods, with a focus on the framework of the new FW Act. The paper examines both unfair dismissal law and unlawful termination law, as they have generally become known. Unfair dismissal law provides an avenue for certain employees to make an application for relief on the ground that their termination was ‘harsh, unjust or unreasonable’. Unlawful termination, by contrast, has come to refer to a package of additional provisions regarding termination of employment, namely, minimum notice periods, a prohibition on dismissal based on a discriminatory ground such as race or sex, and information and consultation requirements on employers relating to redundancies of 15 or more employees.2 * Senior Lecturer, Melbourne Law School and member of the Centre for Employment and Labour Relations Law, University of Melbourne.
    [Show full text]
  • FIREWALLING the RIGHT to STRIKE in AUSTRALIA? Introduction
    FIREWALLING THE RIGHT TO STRIKE IN AUSTRALIA? Chris White Introduction I argue for the repeal of Australia’s penal powers against strikes. I advocate the firewall right to strike. The Australian Labor government’s Fair Work Act, in force July 1st 2009, retains the same repression of legitimate industrial action as former Prime Minister John Howard. PM Howard’s neo-liberal right-wing government was voted out in Australia’s election on 24 November 2007 and the PM lost his seat in Parliament. This defeat was due to voters rejecting his extreme anti-worker Workplace Relations Act legislation, that was called WorkChoices (2006), the name being political ‘spin’, as there was no choice for employees. PM Howard rushed WorkChoices through the Australian Parliament in 2005 when he obtained for the first time since elected in 1996 control of the Australian Senate. The Howard government had to earlier negotiate with minority party Senators with the balance of power. Australian unions through the Australian Council of Trade Unions (ACTU) mounted the largest union campaign in labour movement history. The Your Rights at Work Worth Fighting and Voting For campaign YRAW, funded with $30 million, with mass community assemblies, with sophisticated TV print radio and web-based communication http://www.rightsatwork.com.au/ and the unprecedented political mobilisation of unionists and community groups with the message against unfair work laws. Muir (2009) records this successful campaign in key marginal political seats that convinced working families to vote against WorkChoices. The Australian Labor Party ALP had new leaders, Kevin Rudd and Julia Gillard who promised to repeal WorkChoices.
    [Show full text]
  • Andrew Stewart and Others
    Labour Regulation: Is There a Case for Major Reform? Professor Andrew Stewart Adelaide Law School Professor Peter Gahan Centre for Workplace Leadership, University of Melbourne Associate Professor Shae McCrystal Sydney Law School Associate Professor Anna Chapman Melbourne Law School with the support of Prof Rosemary Owens AO, Assoc Prof Anne Hewitt, Dr Joanna Howe and Assoc Prof Alexander Reilly (Work and Employment Regulation research group, Adelaide Law School) Prof John Howe, Prof Beth Gaze, Dr Tess Hardy and Associate Professor Joo-Cheong Tham (Centre for Employment and Labour Relations Law, Melbourne Law School) Prof Joellen Riley (Labour Law and Relations group, Sydney Law School) Prof Anthony Forsyth and Prof Breen Creighton (RMIT School of Business & Law) Submission to the Productivity Commission Inquiry into the Workplace Relations Framework March 2015 Introduction and summary This submission has been prepared by a group of researchers, spread across four institutions. Our expertise spans the disciplines of law, economics, management and industrial relations, and we include amongst our ranks many of Australia’s leading scholars in the field of labour law and regulation. We draw here not only on our own research, and that of others in our field, but on the practical experience of workplace relations that many of us have gained in acting for management, unions and/or workers, whether in legal practice or otherwise. Our purpose is to make the following general points about Australia’s current system of labour regulation and the approach that we believe the Productivity Commission should take in reviewing it: 1. The regime established by the Fair Work Act 2009 (Fair Work Act) is based on a balance or accommodation between competing interests and objectives, arrived at after a lengthy period of change and upheaval in both the conduct and regulation of workplace relations.
    [Show full text]
  • From the Arbitration System to the Fair Work Act: the Changing Approach in Australia to Voice and Representation at Work
    Mark Bray* and Andrew Stewart** FROM THE ARBITRATION SYSTEM TO THE FAIR WORK ACT: THE CHANGING APPROACH IN AUSTRALIA TO VOICE AND REPRESENTATION AT WORK ABSTRACT This article explores mechanisms for employee voice and representa- tion at work by reference to five processes for making rules about the employment relationship: statutory regulation, delegated regulation, collective agreement-making, individual contracting, and managerial unilateralism. We look in particular at five labour law regimes that have operated in Australia: the traditional conciliation and arbitration system; the enterprise bargaining regime introduced in 1993; the Workplace Relations Act as it operated after 1996; the ‘Work Choices’ amendments that took effect in 2006; and the Fair Work legislation from 2009 onwards. Our analysis of those regimes suggests three main findings. First, the support for union forms of collective voice has declined, but the laws have also changed dramatically in the types of support offered for trade unions. Secondly, the diminishing legislative support for unions has not been counterbalanced by the development of alternative collective forms of employee voice. Thirdly, the individualisation of rule-making processes and employee voice has been a consistent trend in Australian labour law. I INTRODUCTION n analysing the profound changes to Australian labour law over the last two decades, we have argued elsewhere that it is valuable to focus on the mix of Irule-making processes that have been promoted or discouraged by different regimes.1 In this article, we adopt the same approach to shed light on changing forms of employee ‘voice’ and representation in Australia. Our approach to employee voice is broadly consistent with the ‘discourse of labour relations’,2 with an important modification.
    [Show full text]
  • 'Mad Men': the Fallout from the Qantas Industrial Dispute
    OF ‘KAMIKAZES’ AND ‘MAD MEN’: THE FALLOUT FROM THE QANTAS INDUSTRIAL DISPUTE ANTHONY FORSYTH* AND ANDREW STEWART† [The Qantas industrial dispute made headlines around the world, after the airline took the drastic step in October 2011 of grounding its fleet ahead of a proposed lockout of a large proportion of its workforce. Essentially a contest between job security and employ- ment flexibility, the dispute was one of the most significant in Australia for some time. This article examines the origins and circumstances of the Qantas dispute and the issues it highlighted as to the operation of key aspects of the Fair Work Act 2009 (Cth). We conclude that, particularly in light of the federal industrial tribunal’s endorsement of the airline’s strategy and support for the concept of ‘managerial prerogative’, the dispute may have long-term implications for workplace regulation in Australia.] CONTENTS I Introduction .............................................................................................................. 786 II Background to the Qantas Dispute ....................................................................... 789 A The Battlelines Are Drawn: Company and Union Perspectives ........... 789 B The Battle Begins ......................................................................................... 792 III The Dispute Takes Off ............................................................................................. 796 A Qantas’s Grounding and Proposed Lockout ............................................ 796 B The
    [Show full text]