Fair Work Australia 'legal', claims Gillard

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Fair Work Australia 'legal', claims Gillard

Labor is claiming its proposed new Fair Work Australia industrial relations system is legal, despite allegations from employer organisations that it could be unconstitutional, and have a conflict of interests between its judicial and policing powers.

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Labor is claiming its proposed new Fair Work Australia industrial relations system is legal, despite allegations from employer organisations that it could be unconstitutional, and have a conflict of interests between its judicial and policing powers.

Opposition IR spokeswoman, Julia Gillard, said today that Labor had 'expert legal opinion that the proposal we put forward for Fair Work Australia squares up with the Australian constitution'.

'We've been working on this for many months now and in the course of those many months we have taken legal advice and we've ensured that what we're suggesting with Fair Work Australia is legal and will work,' she said.

Gillard said Labor understood that the body would need to quarantine its judicial section from the rest of the functions of Fair Work Australia. 'This is achievable,' she said.

Serious questions about viability

However Australian Industry Group (AiG) Chief Executive, Heather Ridout, said there are serious questions about the viability of the ALP's Fair Work Australia proposal.

'To have a genuinely national system there will at some point need to be a rationalisation of the 10-plus State and Federal agencies and tribunals,' she said. 'Industry would have serious concerns with a new agency that diminished the functions and independence of key institutions within the WorkChoices workplace relations system, such as the Australian Industrial Relations Commission (AIRC), the Australian Fair Pay Commission (AFPC), the Office of the Employment Advocate (OEA), and the Office of Workplace Services (OWS).'

She said it is far from clear how Fair Work Australia would operate 'but the radical concept of bringing together into one authority the functions of adviser, investigator, prosecutor, mediator and judge would create serious conflicts of interest'.

Clear separation of powers

'Under the current system we have a clear separation of powers and functions. Under Labor's plan the super regulator would be responsible for advising on the law, investigating alleged breaches, pursuing prosecutions, determining whether breaches have occurred and imposing penalties.

'It is much like combining the functions of the police, the Director of Public Prosecutions (DPP) and the courts. In the workplace relations context, it is the equivalent of the Industrial Relations Commissioner and the advocate for one of the parties being the same person.'

The Australian Chamber of Commerce and Industry (ACCI) called into question both the fairness and the legality of the proposal.

More powerful and pervasive, says ACCI

'This new super agency is part of an overall plan to increase industrial relations regulation and impose compulsory collective bargaining on workplaces,' said ACCI Chief Executive, Peter Hendy. 'It looks to be more powerful and more pervasive than any previous industrial relations body. It would be a backward step for Australia. History tells us that the only winners from a more centralised and pervasive system are trade union bosses.'

Hendy said there is a great risk that small business in particular will see this new body as 'an army of government bureaucrats located in the local shopping centre who will be interfering in the running of small businesses'.

Efficient and effective, says Labor

Craig Emerson, shadow minister for small business, said Fair Work Australia would benefit small business as a one-stop shop for practical information and guidance on rates of pay and minimum working conditions.

'It will be a decentralised body with mobile experts in dispute resolution, including on unfair dismissals, being available at venues agreed by employers,' he said. 'Fair Work Australia will have a central telephone information service and will publish workplace information on its website.

'It will be efficient, effective, informal and easily accessible to all Australians, including small businesses.'

AiG's comments

AiG's comments can be found at this website.

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