Fair work load for Fair Work Australia

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Fair work load for Fair Work Australia

How Fair Work Australia (FWA) will operate has been one of the bigger 'grey areas' of the Forward with Fairness reforms so far.

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How Fair Work Australia (FWA) will operate has been one of the bigger 'grey areas' of the Forward with Fairness reforms so far.

We have been told that FWA will be a single organisation that will take over the role of the several ones that currently exist. Last month, the Government released some further information that provides some detail about how FWA will operate in practice, and what powers it will have. But as with some other aspects of Forward with Fairness, we will still need to see the Bill introduced to Parliament later this year before the full picture emerges.

The following information was provided in a Fact Sheet released in mid-September.

One bureaucracy instead of seven

FWA will replace each of the following institutions from 1 January 2010:

  • Australian Industrial Relations Commission (AIRC)

  • Australian Industrial Registry

  • Australian Fair Pay Commission (AFPC)

  • Australian Fair Pay Commission Secretariat

  • Workplace Authority (WA)

  • Workplace Ombudsman (WO)

Australian Building and Construction Commission (ABCC) (in this case, currently scheduled for 1 February 2010, but still the subject of debate and lobbying by the affected parties).

Office holders

FWA will comprise a president, senior members and members, including minimum wage panel members. These will be statutory office holder positions. There will also be a CEO and administrative staff, the latter working under the supervision of members.

Both the members and the CEO will report to the president. Members’ functions include: approval of enterprise agreements, review and variation of awards, issuing good-faith bargaining orders, handling unfair dismissal claims, mediation and dispute resolution, and issuing orders relating to industrial action. Powers will include ordering and conducting compulsory conferences between the parties.

The president will head the Minimum Wages Panel, which will take over the AFPC functions. The panel will set and adjust wages and conduct annual wage reviews.

The above two paragraphs describe FWA’s 'tribunal functions'. The CEO and his/her staff will perform the 'non-tribunal functions' and provide assistance to the president and members. Administrative roles include registry functions, collecting information for matters before FWA and providing information and assistance to the public.

Fair Work Australia Inspectorate

The second division of FWA is the Inspectorate, which will be headed by a director. While its administrative functions will be integrated with general FWA functions, it will be subject to separate governance arrangements. The director will appoint Fair Work Inspectors, who will assist employers, employees and unions to comply with the legislation and, where required, take steps to enforce it via the court system. The director will also have educatory and information functions.

Inspectors will have the usual investigative and information collection powers of this type of role (such as entry to work promises and inspecting and copying documents), plus they can investigate and enforce matters relating to the National Employment Standards (NES), modern awards, enterprise agreements and wages orders issued by the Minimum Wages Panel.

Fair Work Divisions of Federal Court and Federal Magistrates Court

The third component of FWA will be its legal arms, but these will exist within the courts themselves. They will hear and determine matters that arise under the workplace relations legislation. They can order what the Fact Sheet calls 'flexible remedies', described as 'any orders considered appropriate to remedy a contravention'. For example, an injunction rather than a financial penalty might be ordered.

Entitlements under common law employment contracts that relate to matters covered by the NES (such as leave entitlements or notice of termination or redundancy) or modern awards (such as wage rates, penalty rates or allowances) can be enforced by either court, which will enable related matters to be combined. As an alternative, relevant state or territory courts can also hear these matters, although the functions of those courts are otherwise unaffected by the changes.

The Small Claims Procedure will also be extended to the Fair Work Division of the Federal Magistrates Court. The limit for claims will be increased from $10,000 to $20,000.

The Fact Sheet says that the Small Claims Procedure will emphasise an 'informal' approach. The Court will have the discretion to allow a party to be represented by a lawyer, but it is expected that this will rarely be necessary.

What happens next?

Note: FWA will not be established until 1 January 2010, which means the seven existing organisations will continue until then, even though some aspects of the Forward with Fairness changes have now been brought forward to 1 July 2009.

As noted above, the Bill will provide further details of the procedural arrangements that will apply to FWA. Actual appointments to FWA will presumably not be announced until after the legislation has been passed by Parliament. At that time, we will gain a better idea of the levels of expertise and workplace relations experience that the key appointees and functions will have, and how much of the expertise that exists in the current organisations (such as the AIRC) can be transferred to the FWA.

Also, some lawyers have questioned the constitutional validity of FWA as an organisation that will have both judicial and administrative functions. It has been held in previous decisions that this cannot be the case. See also a previous article: Fair Work Australia - questions outstanding.

Further information

For access to the Fact Sheet, click Fact Sheet No 2 'Fair Work Australia institutions: a one-stop shop'.


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