Fair Work system may come in early: IR lawyers

Analysis

Fair Work system may come in early: IR lawyers

Two senior industrial relations lawyers believe the whole Fair Work Australia (FWA) system — without modernised awards or the NES — will come into operation on 1 July this year, not 1 January next year as expected.

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Two senior industrial relations lawyers believe the whole Fair Work Australia (FWA) system — without modernised awards or the NES — will come into operation on 1 July this year, not 1 January next year as expected.
 
The Federal Government has already announced that the unfair dismissal and collective bargaining provisions will start on 1 July. It was expected that Interim legislation would cover the period from 1 July 2009 to 1 January 2010.
 
Jack de Flamingh, partner, Corrs Chambers Westgarth, told the 4th Annual Industrial Relations Conference in Sydney last week that he expected the legislation would begin on 1 July this year.
 
Govt ‘hasn’t said it won’t’
 
Flaming told WorkplaceInfo that ‘the Government hasn’t said it won’t’.
 
‘They have said what will start on 1 July and people have just assumed that therefore FWA won’t.’
 
Chris Gardner, partner, employee relations Freehills also backed this view, saying he expected the full system to be in operation on 1 July.
 
Toothless tiger
 
Flamingh said the ‘toothless tiger’ provisions that allowed no appeal over workers refused flexibility at the workplace or extended maternity leave requests leave such workers ‘with nowhere to go’.
 
‘This is an area that could change,’ he said.
 
In a presentation of how he saw FWA in operation, Flamingh said WorkChoices had effectively sidelined AIRC, and made it a voluntary forum.
 
He said FWA would be less formal and legalistic than WorkChoices or the IR systems that preceded it.
 
Flamingh said virtually everything would be at one site: the Fair Work Ombudsman, the Workplace Authority, the FW divisions of the Federal Court and the Fed Magistrates Court as well as the AFPC.
 
Focus on mediation
 
‘The focus will be on mediation and dispute resolution away from formal, adversarial process,’ he said.
 
The process would also be decentralised, with FWA visiting worksites to resolve disputes.
 
‘It will be accessible, less formal, holistic, and provide information and advice on compliance,’ Flamingh said. ‘It will not be bound by the rules of evidence.’
 
Specialist industry divisions
 
It will also have specialist industry divisions (which Flamingh said would mean a Building and Construction division to take over from the ABCC when it is abolished on 1 February 2010).
 
He said the Wilcox report into the powers of the body that will replace the ABCC is due at end of March, and the matter will be clearer then.
 
All this would mean FWA would be bigger than the old AIRC and have more functions.
 
It would try to resolve disputes by conciliation and mediation, and set a higher bar on legal representation.
 
Quicker approvals
 
It is also expected to be quicker on approving agreements, he said.
 
FWA would have a key role in good faith bargaining.
 
‘Good faith is very difficult, unchartered territory,’ Flamingh said. ‘There will have to be a balance between when FWA intervenes and when it doesn’t.’
 
He said, under the legislation, FWA can make orders in regards to good faith bargaining, and can prosecute if it determines there has been a serious breach.
 
There will also be scope orders, if the terms of a proposed agreement seem too broad or narrow.
 
He said FWA will have an increased role in unions representing members over such matters as right of entry.
 
Union coverage powers
 
It will also have powers regarding union coverage disputes, with enhanced ability to arbitrate.
 
Flamingh said the challenges for FWA would be dealing with its bureaucracy and accessibility.
 
Its dispute settling/prevention role would require intervention that facilitates bargaining rather than disrupts it.
 
BOOT could slow approval
 
He said the BOOT test, which requires workers to be better off overall, could slow down the approval of some agreements, but there will probably be fairly standard clauses that may overcome this problem.
 
Flamingh said the $100,000 income barrier that allowed workers to escape award provisions cannot include discretionary bonuses, super, commissions on sales.
 
‘It must be a guaranteed figure,’ he said.
 
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