Fair Work president comes out fighting against appeal panel

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Fair Work president comes out fighting against appeal panel

Two key addresses by the presidents of the NSW Industrial Relations Commission and the Fair Work Commission over the weekend focused on shifts in the framework for Australian employment regulation. The FWC’s experience with the anti-bullying laws was also detailed.

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Over the weekend, the Industrial Relations Society of NSW hosted a summit of key players in industrial relations, with MPs, employer associations, unions, legal practitioners and state and federal Industrial Relations Commission members converging on the Blue Mountains to discuss shifts in the framework for employment regulation in Australia.
 
Of particular note were two key addresses by the presidents of the NSW Industrial Relations Commission and the Fair Work Commission.

NSWIRC president calls for shift in IR regulation
 
Justice Michael Walton, president of the NSW Industrial Relations Commission, outlined his vision for the new employment law landscape. The vision is a marked departure from the current IR system, with the president calling for an overhaul of the current federal regulatory system and a greater focus on early mediation of industrial issues at a local level.
 
The president described a world whereby industrial regulation should come to mirror standard employment contracts more and more, with industrial tribunals focusing on early intervention in disputes by way of conciliation and mediation.
 
The future described by president Walton appeared to be one with less collective based disputes (and impliedly less union involvement) and a greater focus on the individual employment contract. The president saw a greater role for human resources management, as opposed to the traditional IR managers of the past.
 
FWC president takes different approach
 
On the other hand, president Iain Ross of the Fair Work Commission took the opportunity to robustly defend the status and current practices of the Fair Work Commission.
 
The president initially outlined the substantial progress made by the Fair Work Commission in dealing with cases in a timely manner.
 
While outlining his vision for the future, the president took a firm stance against those calling for a new appeal panel to be superimposed on the Fair Work Commission. The president raised a number of arguments against the introduction of an appeals panel, noting that:
    • The introduction of an appeals panel would not necessarily see inconsistency between first instance decisions resolved;
    • Inconsistency between first instance decisions is a matter which affects all courts and tribunals;
    • Although the Minister for Employment can direct any Fair Work case to be reviewed, in the entire history of the Fair Work Act not once has any Labor or Liberal minister intervened to seek a review of a Fair Work decision; and
    • At any point, parties can seek to have matters referred to a full bench where there is a need for a clear precedent on an issue to be outlined.
Others at the conference supported the president’s view, with Professor Andrew Stewart stating the introduction of an appeals panel would be an “attack on the integrity of the independent umpire setting an appalling precedent”. Professor Stewarts said the concept belonged in the “dustbin”.
 
Although no formal announcement has been made by the government regarding the introduction of a Fair Work appeals panel, the government’s standing IR policy is open to the introduction of such a measure.
 
Anti-bullying laws, five months in
 
President Ross also detailed the Commission’s experience with bullying claims, five months after the introduction of new federal anti-bullying laws.
 
The president outlined that:
  • The flood of claims expected has not arrived, with about 50 claims being filed per month (against an anticipated rate of approximately 300 per month);
  • The vast majority of claims have been resolved amicably. Anecdotal evidence has indicated that, in many cases, employers were not aware of the bullying allegations prior to Fair Work claims being filed. Once filed, employers have acted promptly to resolve the bullying concerns; and
  • There has been a minimal need for the Commission to exercise the coercive powers granted to it under the new legislation.
Where to from here for employers?
 
There can be no doubt the role of both the NSW and federal employment commissions will be under scrutiny as a new government oversees the impact of the Fair Work Act, some five years after its introduction. Consistency between commission decisions, processes and outcomes will be a key focus.
 
Although the role of both commissions will remain static in the short term, the voices of political and corporate players over the next six months will likely be critical to determining the way in which employment relations is regulated for the next decade.
 
There is a clear fork in the road. President Ross has advocated for continued support of the current federal regime.
 
President Walton has urged for a more dramatic approach, whereby the current structure of regulation is reviewed and tribunal involvement shifts from a federal based ‘umbrella’ approach to a more local system of early dispute resolution.
The unfortunate reality for many employers is that, given the substantial differences between Coalition and Labor IR policy, continued changes to the regulatory framework in the medium term appear assured.
 
Source: Luis Izzo, Lawyer, Australian Business Lawyers & Advisors.
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