More predictions about coming federal IR changes

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More predictions about coming federal IR changes

It seems that until the Bill to implement the substantive provisions of the Federal Government’s Forward with Fairness is introduced into Parliament, many questions about its contents will be unanswered, and some answers may have to wait for the subsequent Regulations (as happened with WorkChoices).

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It seems that until the Bill to implement the substantive provisions of the Federal Government’s Forward with Fairness is introduced into Parliament, many questions about its contents will be unanswered, and some answers may have to wait for the subsequent Regulations (as happened with WorkChoices).

There was more speculation by presenters at the Industrial Relations Summit event held in Sydney on 20 August 2008.

The areas of contention include the role and structure of Fair Work Australia, good faith bargaining and some aspects of the dismissal provisions.

Dates not known yet

All we know at present is that the Bill will be introduced later this year and is expected to commence on 1 January 2010. The union movement and some commentators have placed pressure on the Government to bring forward the dismissal provisions changes, but the Government still appears intent on implementing all its changes on 2010.

Given one Summit presenter’s description of the award modernisation program as 'massive' - a claim supported by its scheduled timetable - it is hard to see the changes occurring any earlier.

Areas of speculation

High-profile industrial relations lawyer Joe Catanzariti observed that the Government’s stated goal 'to return the industrial relations pendulum to the middle' could result in a system that neither side is all that happy with. The Government obviously hopes, though, that both sides will at least be able to live with the outcome.

Arbitration provisions

He controversially claimed that many large organisations in New South Wales have opted out of the current federal system via referral agreements available via s146B of the NSW Industrial Relations Act, ie both parties must agree to the referral. Either individual matters or all industrial relations issues affecting the organisation can be referred via this section. Catanzariti claimed that they had done so because they wanted to regain the option to have matters arbitrated, which under WorkChoices the Australian Industrial Relations Commission can no longer do. [Note: A later Summit presenter questioned this claim, arguing that if these organisations were constitutional corporations, they were bound by the federal system.]

The relevance of this comment is that it is not yet known whether arbitration powers will make a comeback under Forward with Fairness. From the relatively vague details released so far about Fair Work Australia, Catanzariti thinks it is unlikely to occur; however, the unions are keen for the return of arbitration so we will have to wait to see the details.

Dismissal provisions

Not much is known about the proposed Fair Dismissal Code. For example, it may identify specific grounds that are exempt from its coverage (such as theft), or alternatively it could be a 'process code' that employers are expected to closely follow. If the latter, this could defeat the goal of making the process 'simpler' according to Catanzariti.

Another grey area at present is the appeal rights, if any, in relation to dismissal decisions. The prime remedy for unfair or unlawful dismissal is reinstatement. But some employers will feel very threatened by reinstatement orders and either will want to appeal against them or will refuse to comply with the reinstatement order. Catanzariti predicted 'big problems' if there is no right of appeal from Fair Work Australia determinations.

Another possibility, he added, is court challenges to the validity of Fair Work Australia. He noted that the High Court has previously found it unlawful for the Human Rights and Equal Opportunity Commission to operate as both an advisory/administrative and judicial body in a 1995 case, which is what it looks like Fair Work Australia is intended to be.

He also predicted that the Chief Justice of the AIRC will probably become the head of Fair Work Australia.

Another Summit presenter discussed issues concerning Fair Work Australia in greater detail. Her comments are summarised at the Workplaceinfo webpage.

'Good faith bargaining'

Catanzariti considers it unlikely that the new Act will formally define 'good faith bargaining'. The concept has existed in New Zealand since 2000 and there have been various legal challenges there over whether it had actually occurred. He added that this is somewhat counterproductive, in the sense that it there might be a dispute over whether one party had 'called a meeting', yet it didn’t matter if the 'meeting' failed to actually produce an agreement - in other words, too much focus on process, at the expense of outcomes.

Another potential issue is whether, if one union member at a workplace requests union involvement in bargaining, even if none of the others request it, will the employer have to conduct two sets of negotiations, ie bargain separately with the union over one employee? This question needs to be clarified.

Prohibited content

Matters such as union picnic days, payroll deductions of union membership fees, etc, may come back onto the bargaining table when the Work Choices 'prohibited content' provisions are removed. This is a possibility unless the new Bill specifically excludes each such provision, which also seems unlikely given the Government’s general philosophy of 'bargain over anything above National Employment Standards'.

Further information

Further information about the Summit is available from its organiser, Informa.


Related

Fair Work Australia - questions outstanding

 

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