Since it came into force on 1 July 2009, the Fair Work Act 2009 (Cth) (FW Act) has been the subject of much commentary. In the last 30 months, all practitioners in the area of employment and industrial law have had to grapple with yet another legislative reform. The experiences we have shared with our clients have been both positive and negative. Most people have a view as to the efficacy and practical implication of the FW Act and its impact on business. With the appointment of the Fair Work Act Review Panel and its publication of the Fair Work Act Review background paper and call for submissions, now is the opportunity to have your say in a public forum.
The Fair Work Act Review Panel (Panel) has been appointed to conduct a post-implementation review of the FW Act (Review). On 18 January 2012 the Panel released the Fair Work Act Review background paper (Background Paper) and has invited interested parties to make submissions. View the background paper here.
The Review is intended to be an evidence-based assessment of the operation of the Fair Work legislation and the extent to which its effects have been consistent with the objects of the FW Act and the intention of the legislation.
The Review will therefore examine the extent to which the Fair Work legislation is operating to ensure, amongst other things:
- the creation of a clear and stable framework of rights and obligations which is simple and straightforward to understand
- the promotion of fairness and representation at work
- effective procedures to resolve grievances and disputes
- genuine unfair dismissal protection
- the emphasis on collective bargaining at enterprise level, which is underpinned by good faith bargaining obligations
- the creation of a single and accessible compliance regime.
The Review will also consider any differential impacts across regions, industries, occupations and groups of workers. The Panel has been asked to examine and report on areas where the evidence indicates that the operation of the Fair Work legislation could be improved consistent with its objects.
The Review will not address any issues arising from the content of Modern Awards. This will be reviewed as part of the Fair Work Australia 2012 Review of all Modern Awards.
The Panel has invited written submissions, which must be provided by 17 February 2012. Supplementary submissions and responses are required by 2 March 2012.
The attachments to the Background Paper contain information and questions to assist with the preparation of the submissions. Attachment A sets out statistical measures in relation to matters such as employment and participation in the workplace, national wages growth and CPI increases, productivity cycles as well as interesting statistics around the use of enterprise agreements, the types of enterprise agreements that are in place and the enterprise agreement processing time.
Attachment B sets out 69 different questions which the Panel suggest that parties may wish to consider in preparing their submissions. These questions relate to a number of different areas, such as questions relating to:
- whether the FW Act has provided appropriate flexibility for businesses and a balanced framework for workplace relations and the impact it has had on productivity
- the safety net. In particular, the Panel asks whether the safety net is fair, simple, easy to read and apply, whether it is appropriately industry or occupationally specific and whether individual flexibility arrangements work and give appropriate protections
- bargaining and agreement making. For example, whether it has had an impact on productivity, whether the approval process works, the impact of the good faith bargaining requirements and the impact of majority support determinations?
- equal remuneration
- transfer of business and the impact of the new provisions in the FW Act
- general protections. The Panel asks whether the general protections provisions provide adequate protection of employees' workplace rights and provide effective relief for persons who have been discriminated against and whether employers and employees understand their rights and obligations
- unfair dismissal – questions include whether the unfair dismissal provisions appropriately balance business and employees' rights? Are the procedures appropriate? Is telephone conciliation desirable? Are the provisions around redundancy appropriate?
- industrial action – is the process around protected action ballots appropriate? Are Fair Work Australia's powers in relation to industrial action adequate? Should there be more emphasis on compulsory conciliation? How has the FW Act affected the rights to take industrial action?
- right of entry and whether the right of entry provisions balance the right of unions to enter workplaces and the right of employers to go about their business
- the institutional framework – are the processes and procedures (insofar as they are dealt with by the FW Act) in relation to the Federal Magistrates Court and the Federal Court appropriate? Is the role of the Fair Work Ombudsman appropriate?
The Panel has made it clear that all submissions must be supported by evidence. Mere statements of conclusion will be insufficient. The Panel has suggested that case studies may be of assistance in illustrating any particular shortcomings or issues that have been created by the FW Act.
The Review gives employers a real opportunity to air their concerns about the operation of the FW Act in a public forum. Certainly, from a legal perspective, a number of concerns have arisen about the interpretation and efficacy of certain provisions. We have also, for example, seen at first hand the impact that the introduction of the adverse action general protections provisions have had on many of our clients with some very novel claims being made by employees and former employees. Norton Rose Australia intends to take advantage of the opportunity that the Review provides to raise some of our areas of concern.
In order to obtain further information about the views of our clients on certain areas of the FW Act, we have prepared a short survey asking some pertinent questions about the impact on your organisation of certain areas of the FW Act. You can take the survey here and we invite you to complete the survey online letting us have your views on the efficacy of the current system.
As always, if your organisation intends to prepare its own submissions to the Panel, your contacts at Norton Rose Australia would be delighted to assist.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.