Australia: The Fair Work Act Review – Your opportunity to make your views heard?

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.