by Anthony Forsyth*
A number of Australia’s leading employer associations have called on the Federal Government to make significant amendments to the Fair Work Act, claiming that they are unable to identify where and how the system is meeting the Government’s objective of delivering productivity growth and sustainable businesses.
Led by the Australian Chamber of Commerce and Industry, the employer bodies have raised concerns about matters such as cost increases and reduced flexibility arising from the new modern awards; bargaining outcomes that fail to delivery productivity improvements; increased union activism, particularly through the use of rights of entry and protected industrial action; and a rise in unfair dismissal claims and the need for businesses to pay ‘go away’ money in order to settle claims.
The agreement-making and bargaining rules under the Fair Work Act are a major source of complaint for these employer groups. They claim that unions have been trying to use these provisions to frustrate direct communications between employers and their staff, and that there is undue technicality and red-tape in getting agreements approved by Fair Work Australia.
Similar concerns are highlighted in a paper recently released by the Australian Mines and Metals Association: ‘Agreement or argument: what faith can we have in good faith bargaining’? AMMA has made 22 recommendations for changes to the Fair Work system, including: allowing employers to make union-free greenfields agreements; removing the concept of ‘default’ bargaining representatives (which currently gives unions automatic representation rights, unless a union member chooses another bargaining representative); and not allowing protected action to be taken until parties have exhausted negotiations and reached an impasse in bargaining.
In considering the issues raised by AMMA, ACCI and other employer associations, it must be remembered that the Fair Work Act was introduced in place of the previous Government’s Work Choices legislation – which had significantly enhanced the labour market power of employers. The Labor Government’s laws have sought to strike a balance in the workplace relations system between the objectives of flexibility and fairness. This must inevitably have resulted in some attenuation of the legal rights that employers previously enjoyed. And in certain areas, the new system has not gone all the unions’ way – eg the good faith bargaining laws are being interpreted by FWA in a way that gives employers considerably more latitude to communicate and deal directly with employees than is the case under comparable laws in North America.
In any event, with the Government having been re-elected on its policy of maintaining the current system in operation, the employers’ demands are unlikely to result in any major changes to the Fair Work Act any time soon.
* Anthony Forsyth is co-author, with Val Gostencnik, Jacqueline Parker and Rosemary Roach, of Navigating the Fair Work Laws, which is publishing this week by Thomson Reuters. The book includes chapters examining in detail the Fair Work Act provisions relations to enterprise agreement-making, good faith bargaining, and protected industrial action. For more information, click here.