Some insider predictions about Fair Work Australia


Some insider predictions about Fair Work Australia

With the commencement of the Fair Work Act now less than three weeks away, two presenters at a recent conference provided some tidbits of information about how some parts of Fair Work Australia are likely to operate in practice.


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With the commencement of the Fair Work Act now less than three weeks away, two presenters at a recent conference provided some tidbits of information about how some parts of Fair Work Australia are likely to operate in practice.
Graeme Watson, currently vice president of the Australian Industrial Relations Commission, and Nick Wilson, currently the Workplace Ombudsman, were speaking at the 2009 Australian Workplace Relations Summit*, held in Sydney on 10–11 June 2009. Both their organisations will be swallowed up to become parts of Fair Work Australia (FWA).
Conciliators being recruited
Watson said that FWA is currently advertising to recruit about 30 conciliators, mainly to deal with claims of unfair dismissal. The aim is for these employees to deal with matters by phone as much as possible, and to respond to claims within one week of their lodgment. The current time delay is about three weeks. Members of FWA will not become involved in claims until later, when they become subject to a conference or hearing.
Although Watson did not refer to the matter, it appears from the above that the earlier claim that FWA staff would visit workplaces to attempt to resolve matters on-site is very unlikely to occur, at least in the early days of the new Act.
Compliance with Fair Dismissal Code not a guarantee of immunity
The new Fair Dismissal Code for small businesses has been designed as a checklist, with the implication that ticking the 'correct' boxes means that a dismissal cannot be challenged by the employee. In practice, however, someone still has to check that the Code was actually complied with, and this may result in an inquiry to assess whether compliance actually occurred and whether the employer had acted reasonably.
FWA is required to follow the principles of natural justice, and this will mean following processes to ensure that there is genuine compliance with the Code, if an employee contacts it regarding his/her dismissal. So, completing the Code’s checklist will not necessarily be the end of the matter for employers, particularly in cases involving alleged misconduct. It appears that the Code is therefore likely to be more of a guide to good practice than a guarantee of immunity from claims.
More use of the AIRC and its successor?
Watson noted that under the current Act, bargaining matters are only referred to the AIRC if both parties agree to do so. However, the new good faith bargaining provisions will only require one party to refer the matter to FWA, which will be taking over the AIRC’s roles.
Given that the parties will often have unequal bargaining power, he predicted that access to FWA will occur more frequently than current access to the AIRC.
New power to investigate discrimination matters
Wilson noted that s 351 of the Fair Work Act will give the Fair Work Ombudsman (to operate within FWA and replace the Workplace Ombudsman) new powers to investigate matters relating to discrimination against employees. Currently, the Ombudsman advises employees to refer discrimination claims to the authorities that administer equal opportunity legislation, apart from dismissal for a prohibited (discriminatory) reason.
The offices of the Workplace Authority and Workplace Ombudsman will merge within FWA. The new office will have about 700 staff, and include a separate unit to deal with small- and medium-sized businesses.
Wilson claimed that 'everything is ready for 1 July 2009' in respect of the Ombudsman’s role.
Other comments about Ombudsman’s role
Wilson also made the following comments about the Ombudsman’s work to date:
  • 95% of all remuneration recovered for employees has been achieved without litigation.
  • It will sometimes seek 'enforceable undertakings' from employers as an alternative to prosecution. The undertaking usually includes a donation to charity as well as repaying employees. It may be used if the employer confesses to making errors when contact first occurs, but there is no guarantee the Ombudsman will take this approach, it depends on the circumstances of each case.
  • He presented statistics on coverage of employees by the federal system. Of the states that have not referred their industrial relations powers to the Commonwealth, the figures vary between 60% and 74%. In NSW, it is 73%.
Further information
The conference was organised by Association and Communication Events. For further details, visit their website.
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