Minority report attacks Fair Work Bill — but not unfair dismissals


Minority report attacks Fair Work Bill — but not unfair dismissals

A minority report by Liberal Party Senators on the Senate Inquiry into the Fair Work Bill has criticised various aspects of it and called for amendments — though, surprisingly, not the unfair dismissal provisions.


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A minority report by Liberal Party Senators on the Senate Inquiry into the Fair Work Bill has criticised various aspects of it and called for amendments — though, surprisingly, not the unfair dismissal provisions.
In particular, the report attacks the transfer of business, right of entry, collective bargaining, low-paid bargaining stream and default bargaining agents.
The minority report says the right of the Government to abandon much of the WorkChoices architecture, based on its commitments in the lead up to the 2007 Federal election, is clear and beyond challenge.
WorkChoices still dead
‘Coalition senators acknowledge that WorkChoices is dead;only the makeup of its successor remains to be determined,’ the report says.
‘While acknowledging the Rudd Government's mandate to determine that makeup, Coalition senators believe that the universal verdict of witnesses that the Bill is flawed needs to be responded to.’
Written by Senator Garry Humphries on behalf of Senators, Eric Abetz, Michaelia Cash and Mary Jo Fisher, the report says aspects of the legislation appear to be unfair, may destroy jobs and are at odds with the Federal Government’s promises of what the legislation would do.
However, it also praises the legislation as clear, easy to read and understand.
On transfer of business, it says the legislation replaces the old concept of ‘asset transfer/business character’ with a broader concept of ‘transfer of work’.
It widens the circumstances in with the existing industrial instrument transfers to the new owner.
Disincentive to keep employees
The minority report says this creates a disincentive for the incoming employer to retain the existing employees.
On right of entry, it says the evidence of DEWR confirmed that ‘… the bill removes the existing requirement for a union to be bound to an award or agreement applying in the workplace as a condition of entry’.
‘This arises as an outcome of the award modernisation process currently before the Australian Industrial Relations Commission,’ the report says.
‘The existing concepts have been replaced with provisions that allow union entry based on union organisational "rules" that determine what workplaces and what type of work a union can "cover".'
‘It is clear that such an approach requires an employer to be familiar with the "rules" maintained by a particular union as opposed to simple reference to an award. This can cause significant problems for an employer faced with such a circumstance.’
Demarcation disputes
'It also says this situation could lead to demarcation disputes amongst unions.’
It quotes evidence from AWYU national secretary Paul Howes:
‘Under our rules, for example, we could argue that we cover New South Wales public firefighters, security guards and the entirety of the coverage of the AMWU, for example, and so on. There are other rules that are allowed for under our eligibility rules. What we are concerned about is the potential for disputes to arise that have never happened in the history of industrial relations in this country.’
On good faith bargaining, the minority Senators criticise the fact that unions become the ‘default’ bargaining agents if a member does not appoint anyone else.
‘Opt in’ for union bargaining agents
They want situation changed to an ‘opt in’ provision, where the union becomes the agent only if the worker specifically appoints it.
They are also concerned that the BOOT test means that every individual worker must be better off, not just ‘not worse off’.
It says under this regime if 98% of workforce was better off under a new agreement, and 2% not worse off, the agreement would fail the test.
Many observers were expecting the Liberal Senators to strongly attack the unfair dismissal provisions, as the Coalition has been strongly critical of them.
Unfair dismissals mandate
However the report says:
‘The evidence before the Committee was that, in general terms, the alleged unfair dismissal provisions within the Fair Work Bill are consistent with the policy thrust of Forward with Fairness.
Although certain organisations noted their disappointment with the removal of current exemptions and expressed concern about the practical operation of the provisions, general acceptance of the mandate to make these changes was evident.’
However, the report makes some minor suggestions for improving the unfair dismissal provisions, such as the time limit for making applications.
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