Attacks on Fair Work system increase


Attacks on Fair Work system increase

AMMA attacks Fair Work — truth versus reality; Retailers want ‘full and free’ debate on Fair Work laws.


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AMMA attacks Fair Work — truth versus reality; Retailers want ‘full and free’ debate on Fair Work laws.

AMMA attacks Fair Work — truth versus reality
The Australian Mines and Metals Association (AMMA) has launched a broad attack on Labor’s Fair Work industrial relations system pointing to what AMMA alleges are the misleading information provided by supporters of the system as opposed to the reality of what has actually happened, particularly changes that have disadvantaged employers.

Some examples from AMMA of the ‘negatives developments’ manifested in the system are noted below:
[Promoting union membership]

In a recent decision by Fair Work Australia in ADJ Contracting Pty Ltd (FWA 2380, 28 April 2011), the tribunal endorsed the inclusion of clauses in enterprise agreements that require an employer to actively promote union membership to prospective and existing employees and to encourage employees to attend union meetings during work hours. Despite objections raised to the clauses by employer groups and the ABCC, the tribunal found the union “encouragement” clauses did not breach s350 of the Fair Work Act (which says employers must not induce” employees to become members of a union). The tribunal made a distinction between the word “induce” and the terms used in the clause — “promote” and “encourage”.
The Federal Government, despite pre-election promises that its IR system would respect the right of employees not to join a union, has not objected to the inclusion of the above clauses and has been completely silent on the issue. Despite the promise that unions would not have a guaranteed role in enterprise bargaining, the reality is quite different.

[Union coverage]

Until recently, employers assumed that a union had to have at least one member at a worksite in order to be involved in bargaining. This was often counterproductive given that unions tended to dominate enterprise bargaining negotiations to the exclusion of other bargaining representatives, even where they represented only a small minority of workers.
However, a recent Fair Work Australia decision has opened the way for an official of a union that has no coverage of workers on a site to be nominated to represent them in bargaining. Thus, a union gets a foot in the door in bargaining despite having no-one on a site that is even eligible to be their member.
In Tracey v Technip Oceania Pty Ltd (FWA 3509, 13 June 2011), Fair Work Australia ordered a resource industry employer to recognise and bargain with an official of the MUA, Will Tracey, finding he was validly appointed by employees as an individual bargaining representative, despite the MUA not having constitutional coverage of the workers. Because Tracey was an individual and not a union, the tribunal said there was no prohibition on him being appointed as an individual bargaining representative by employees. This was despite all communication between Tracey and the employer about the negotiation of a new enterprise agreement being on MUA letterhead and Tracey’s email address being his MUA email address.
[Union right of entry]

Despite the Labor Government’s promises to the contrary, the Fair Work Act on 1 July 2009 made significant changes to right of entry laws by:
  • Linking right of entry to union eligibility rules rather than the previous requirement for a union to be covered by an agreement or award at a worksite in order to have entry rights.
  • Abolishing the ability to make new Australian Workplace Agreements (AWAs) with the introduction of the Workplace Relations Amendment (Transition to Forward with Fairness) Act in March 2008.
  • Introducing the ability to include clauses in enterprise agreements conferring additional entry rights on unions. This was not possible under the Workplace Relations Act. Clauses have recently been approved by Fair Work Australia in ADJ Contracting Pty Ltd (FWA 2380, 28 April 2011) that broaden the allowable matters in enterprise agreements. The tribunal has endorsed the inclusion of several clauses negotiated by the ETU in Victoria, including one allowing union officials to enter workplaces without a valid entry permit, without notice, outside of meal times, and without having to abide by any of the right of entry provisions of the Fair Work Act.

In another recent development, a Full Bench of Fair Work Australia made some findings about the operation of the right of entry provisions that will effectively curtail employers’ ability to even designate the room in which a union meets with employees. In AMIEU v Dardanup Butchering Company Pty Ltd (FWAFB 3847, 17 June 2011), the Full Bench said that in designating a room other than the one the union preferred to meet employees in, the onus was on the employer to prove that the union-nominated room would adversely affect its interests. The Bench also said that unions should be given access to those employees who were indifferent or hostile to the union so that the union could have a chance to convince them otherwise. The employer should facilitate this by designating a meeting location accordingly, the Full Bench said.’

AMMA’s full document, Fair for Who? The rhetoric versus the reality of the Fair Work Act, AMMA, June 2011 is available online.
Retailers want ‘full and free’ debate on Fair Work laws
Retailers are calling for a ‘full and free’ debate on the Fair Work Act not stifled by scare tactics about a return to WorkChoices.

Australian Retailers Association (ARA) executive director Russell Zimmerman said legitimate debate on industrial relations reform needed to be had, with both sides of government consulting with employers, unions and industry associations.

‘To label any call for change as a return to the past is not only trite; it stifles the voices which want to ensure the right balance between fairness for employees and employers as well as business productivity, growth and sustainability,’ he said.

Deliver productivity
‘We are once again reminding Government of the spirit of the Fair Work Act legislation when it was introduced, which indicated the laws should be fair for all working Australians as well as “enable co-operation and collaboration in individual workplaces to be the means to deliver productivity, growth and sustainable Australian businesses”.’

Zimmerman said the ARA and other industry bodies believe there are many issues with the Fair Work Act that need to be addressed, including minimum shifts, restrictive working hours and penalty rate structures.

‘Reform for the better will not happen unless both sides of Government move beyond the “back to WorkChoices” rhetoric and actively seek input from relevant industry bodies,’ he said.

‘Clearly an appropriate safety net is a critical part of the picture but we need to focus on the future and strike the right balance between fairness and productivity, growth and sustainability,’ Zimmerman said.

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