Fair Work Australia — questions outstanding

Analysis

Fair Work Australia — questions outstanding

The establishment of Fair Work Australia as the new workplace relations regulatory body is one of the biggest changes in the Forward with Fairness package; yet, there are still a lot of unanswered questions about how it will operate.

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The establishment of Fair Work Australia as the new workplace relations regulatory body is one of the biggest changes in the Forward with Fairness package; yet, there are still a lot of unanswered questions about how it will operate.

These questions were raised and speculated about in a presentation to the Industrial Relations Summit event held in Sydney on 20 August 2008.

Overview

Ms Shana Schreier-Joffe, partner and team leader at Harmers Workplace Lawyers, observed that Fair Work Australia (FWA) will face big challenges. It will replace four current organisations - the Workplace Authority, Australian Fair Pay Commission, Workplace Ombudsman and Australian Industrial Relations Commission from January 2010. Of these, only the Commission is long-established, the others having been set up by WorkChoices.

Schreier-Joffe suggested that the previous Federal Government used Work Choices to ‘nobble’ the Commission, possibly believing that it was biased towards employees and unions. However, the new Government has chosen not to revive its powers but, instead, to absorb it into a sort of 'one-stop-shop' body whose functions will include setting wage rates, approving awards and agreements, resolving dismissal claims and resolving other disputes. However, it is not known at present how FWA will be structured to perform these various roles, and there are few details so far about how it will perform each function day to day.

Schreier-Joffe highlighted the following areas that are still unclear.

Staffing appointments

FWA will be a bureaucratic entity dealing with legal and quasi-judicial issues. It will apparently have both arbitral and judicial functions, but it is not known whether it will be directly involved in prosecutions.

It is also intended to make FWA more 'accessible' to the public by setting up a large number of regional offices, which among other things will allow FWA staff to conduct onsite visits. But will a bureaucrat based in a FWA regional office be able to deal with, say, some of the matters currently handled by the AIRC?

Schreier-Joffe predicted that if these functions cannot be clearly demarked, FWA could well face constitutional challenges.

Another Summit presenter noted that the High Court has previously found it unlawful for the Human Rights and Equal Opportunity Commission to operate as both an advisory/administrative and judicial body in a decision handed down in 1995.

A third Summit presenter floated the idea that the Government should appoint all the AIRC Commissioners to FWA roles because their expertise and experience would benefit it greatly.

Hearings

It is possible to bring lawyers to the AIRC when arguing or defending a claim of unfair or unlawful dismissal but, apparently, FWA hearings will be conducted 'on the papers'.

That means the employee lodges a claim in writing, the employer lodges a written response, and those two documents are the starting point for a conference before FWA that will seek to resolve the dispute.

Some critics suggest this does not allow either party to present a well-prepared case and may lead to some inappropriate findings. In the case of dismissal claims, reinstatement is the primary remedy, and many employers would be very nervous about taking back some employees.

Another issue is the FWA on-site one. After an employee is dismissed, most employers would be very reluctant to allow the employee back on-site to attend a FWA conference. But possibly, the Act will contain provisions that avert that scenario.

Finally, it is not known whether FWA determinations will be appealable. Again given the contentious nature of reinstatement, lack of an appeal mechanism would concern many employers.

'Good faith bargaining'

The Forward with Fairness policy statement lists a number of obligations applying to FWA in relation to 'good faith bargaining'.

FWA will be able to force parties to bargain in good faith, although how it will do this is not yet known. However, it cannot force the parties to actually come to an agreement through bargaining.

There is no comprehensive body of law that can be relied on to interpret the good-faith bargaining provisions. Some guidance may possibly come from provisions in New South Wales, Queensland, South Australian and Western Australian legislation, but these provisions vary from state to state.

Another possible source is a Bill to amend the Workplace Relations Act 1996 that the ALP (then in Opposition) introduced into Federal Parliament in 2004, seeking to add 'good faith bargaining' provisions to the Act.

But will it fly, Wilbur?

Schreier-Joffe concluded on a pessimistic note. She questioned the ability of FWA to perform all its functions in a timely manner, given the extent of its bureaucracy and the huge workload it will take on.

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