Fair Work Commission
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The Fair Work Commission (FWC), formerly known as Fair Work Australia (FWA), is the Australian industrial relations tribunal created by the Fair Work Act 2009 as part of the Rudd Government's reforms to industrial relations.  Operations commenced on 1 July 2009. Ms Bernadette O'Neill is its current general manager.
FWC's functions include the setting and varying of modern awards, minimum wage fixation, dispute resolution, the approval of enterprise agreements, and handling claims for unfair dismissal. It is the successor body to the Australian Industrial Relations Commission, though it also performs functions previously performed by the Workplace Authority, and the Australian Fair Pay Commission.
- 1 Role
- 2 Collective bargaining under the Fair Work Act
- 3 Good-faith bargaining
- 4 Equality bargaining
- 5 Low-paid bargaining stream
- 6 Minimum standards
- 7 Membership
- 8 See also
- 9 Notes
- 10 External links
FWC is an independent body with the power and authority to regulate and enforce provisions relating to:
- the safety net of minimum wages and employment conditions
- enterprise bargaining
- industrial action
- dispute resolution
- termination of employment
The Fair Work Act established a new system of regulation that attempted to create a more national system for regulating industrial relations in Australia. Each state has the discretion to hand over some or all of their industrial relations powers to the Commonwealth, and should a state decide to refer their powers to a centralized and national industrial relations system, all the employees of that state will effectively be covered by the national Fair Work Act. This new national body has taken over the roles of the Australian Industrial Relations Commission (AIRC) in the workplace when dealing with workplace dispute and industrial actions, and in the process determining national industrial relations policies that include setting minimum wages and regulating the award system. Since the introduction of the Fair Work Act, all states have referred their powers to the Commonwealth with the exception of Western Australia.
Collective bargaining under the Fair Work Act
Collective bargaining regulates the terms under which employers hire employees and the future treatment of future employees. Collective bargaining acts as a voice mechanism, where employees, employers and representation parties can express their objectives surrounding the nature of work.
On 1 July 2010, the new bargaining arrangements under the Fair Work Act became operational. The new regulations involved a stronger emphasis on enterprise based bargaining, away from individual arrangements that were dominant under the previous coalition Work Choices legislation, with the removal of individual Australian Workplace Agreements.
Good-faith bargaining is at the core of the Fair Work Act and is primarily each party 'making a sincere effort' in negotiations.
The FW Act sets out what is meant by good-faith bargaining, as follows:
- attending, and participating in, meetings at reasonable times;
- disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;
- responding to proposals made by other bargaining representatives for the agreement in a timely manner;
- giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative's responses to those proposals;
- refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;
- recognizing and bargaining with the other bargaining representatives for the agreement
Parties may seek bargaining orders from FWC if they believe the other party has failed to comply with the above good-faith bargaining obligations.
Good faith bargaining does not require:
- a bargaining representative to make concessions during bargaining for the agreement; or
- a bargaining representative to reach agreement on the terms that are to be included in the agreement.
If one or more of the bargaining parties does not meet the "good-faith" requirements, the following process can be carried out:
Section 229 states the concerned party should first provide the party allegedly not bargaining in ‘good faith’ with:
- A written notice setting out those concerns to the relevant bargaining representatives; and
- Reasonable time within which to respond to those concerns
However, Section 229 states it may not be necessary to comply with the two aforementioned notice requirements should Fair Work Australia be ‘satisfied that it is appropriate in all the circumstances to do so’.
If the party does not respond appropriately to the written notice, Section 230 stipulates that Fair Work Australia has the capacity to make a bargaining order.
Should the relevant party continue to ignore the good-faith requirements following this order, Section 235 states Fair Work Australia can issue a serious breach declaration.
If the bargaining representatives have not settled the issue of non-compliance by the end of the post-declaration negotiating period (generally 21 days), Section 269 states Fair Work Australia can issue a bargaining related workplace determination.
The Fair Work Act 2009 stipulates that employers must take all reasonable steps to notify employees of their right to a bargaining agent not later than 14 days after the notification time of the agreement (when the employer agrees to/initiates bargaining or, majority support determination in relation to the agreement, or a scope order in relation to the agreement comes into operation). The notice must specify that the employee may appoint a bargaining representative to represent the employee in bargaining for the agreement and in a matter before FWC that relates to bargaining for the agreement. An employee organization cannot be a bargaining representative of an employee unless the organization is entitled to represent the industrial interests of the employee. A person may revoke their bargaining agent in writing. Bargaining agents are set out in Division 3 of the Fair Work Act 2009, and can be:
- the employer.
- a person the employer appoints in writing.
- an employee may appoint themselves as their bargaining representative for the agreement.
- a person an employee appoints in writing.
If the employee is a member of an employee organization that is entitled to represent the industrial interests of the employee and the employee does not appoint another person as their bargaining representative; the organization will be the bargaining representative of the employee. Instruments for appointing a bargaining representative are also set out in Division 3:
- an appointment of a bargaining representative comes into force on the day specified in the instrument of appointment.
- the employee's employer must be given the instrument of appointment of the bargaining agent
- for an appointment made by an employer, a copy of the bargaining instrument must be given, on request, to a bargaining representative of an employee who will be covered by the agreement.
Mandatory terms in an enterprise agreement are set out in Division 5. They are:
- flexibility term.
- consultation term (consult with EA covered employees about major workplace changes that are likely to have a significant effect on the employees and allows for the representation of those employees for the purposes of that consultation).
- base rate of pay cannot be below that set by the relevant modern award.
According to Colling and Dickens (as cited in Baird, Frino & Williamson, 2009) equality bargaining ‘encompasses the collective negotiation of provisions that are of particular interest or benefit to women and/or are likely to facilitate gender equality’. Heery (2006, p. 521; as cited in Baird et al., 2009) refers to ‘equality bargaining’ as ‘bending the bargaining agenda to serve the needs of women workers’.
A number of factors have been identified as contributing to female-friendly provisions being included in collective bargaining agreements. These include social forces, the gender of negotiators, union bargaining priorities, managerial support and bargaining structures.
Dickens (2000, p. 203; as cited in Baird et al., 2009) found that when women are involved in bargaining, equality agendas tend to be longer, and women also place a higher priority on equality issues than do their male counterparts. Furthermore, when women are involved in the bargaining processes, equality measures are more likely to be included in final collective agreements (Dickens 1998, p. 34). Equality bargaining is important today because of the aging workforce, increased female workforce participation, and the need for retention of workers. Under a deregulated system, equality bargaining suffers and research shows unions rank family polices lowest in terms of their bargaining priorities.
Good-faith bargaining (as introduced through the Fair Work Act, 2009) may result in a bargaining climate more conducive to bargaining for parental leave provisions than existed under previous legislation. Additionally, the introduction of a statutory government funded parental leave scheme combined with increased (but unpaid) parental leave entitlements via the National Employment Standards (Div 5, Fair Work Act 2009) has raised the community’s and union movement’s consciousness of the matter and is likely to mean that bargaining for improved parental leave will be on union bargaining agendas.
Low-paid bargaining stream
The low-paid bargaining stream creates an internationally unique stream allowing for multi-employer bargaining among previously award dependent employees. Its aim is to encourage low-paid employees and their employers to engage in enterprise bargaining.
The Fair Work Act highlights a number of differences that the low paid bargaining stream incorporates from "normal" bargaining:
- Multi-employer bargaining is permitted; it allows, in effect, arbitration.
- FWC will decide, on application, whether particular employees are eligible.
- A "low-paid authorisation" covering more than one employer may be made by FWC.
The Fair Work Act also states that in this stream there will be:
- Compulsory conferences – including with "third parties"
- Good-faith bargaining orders
- Dispute resolution
- Binding determinations
This initiative clearly owes its origins to the debates over the impact of Work Choices and attempts to deal with the wider problem of endemic low pay.
Implications and conclusions
Evidently, the Fair Work Act marks a substantive change in the nature of bargaining arrangements within the Australian context. Bargaining will be based collectively at the enterprise level, in contrast to the emphasis on individual agreements, which was encouraged under the Howard government. At the heart of the new legislation is the principle of ‘Good Faith Bargaining’, which outlines the necessary behaviours of bargaining parties in negotiations. It could be argued that this framework will encourage greater equality bargaining, however only time will tell the extent of this. Furthermore, the Low Paid Bargaining Scheme is a new and innovative feature of the legislation, which seeks to address the issue of inequality among lower paid sectors of the economy.
More time is needed to truly evaluate the influence of the new bargaining framework. The Rudd Labor government has evidently departed from the individualized framework that was reinforced by the Coalition towards a more collective framework. Therefore, the future of bargaining in Australia will be truly tested in the next few years as test cases come to the forefront of debate.
Australia’s Industrial Relations System at the Federal level has traditionally been centred on the award system, which set minimum standards through compulsory conciliation and arbitration. However, the Industrial Relations Reform Act 1993 and the Workplace Relations Act 1996 began a movement away from this with the introduction of enterprise and individual bargaining, respectively.
The Fair Work Act 2009, as the Workplace Relations Act did, uses the corporations power of the Australian constitution to ensure it applies to as many Australian employees as possible. The ceding of state industrial relations powers (except WA) to the Commonwealth also extends the Acts coverage.
Although common law contracts are still permitted, the Fair Work Act abolishes all individual statutory contracts, such as Australian Workplace Agreements (AWAs). The emphasis is moved clearly towards collective bargaining. There is no distinction made in the act between union-based and non-union agreements.
Fair Work Australia came into being 1 July 2009 as the new national industrial relations regulator, replacing the Australian Industrial Relations Commission. Fair Work Australia’s Minimum Wage Panel takes on the role of setting minimum wages, which had been done by the Australian Fair Pay Commission (AFPC) under the Workplace Relations (Workchoices) Reform Act 2005.
The Fair Work Act 2009 reconstitutes the industrial relations safety net. All employees are entitled to the 10 National Employment Standards, similar to the five Australian Fair Pay and Conditions Standards under Workchoices. Additional occupation- or industry-specific conditions are protected through the new ‘Modern Awards’, of which there are 122 compared to over 4000 awards under the previous system. Another change in the NES under the Fair Work Act 2009 is the 'Requests for Flexible Working Arrangements'. This NES allows parents or carers of a child under school age, or of a child under 18 with a disability, the right to request a change in working arrangements to assist with the child's care.
Irrefutably, the aforementioned streamlining of the award system is one of the most significant aspects of the reforms. Motivated by a desire to streamline, simplify and promote flexibility and productivity, the goal was to create a new minimum standard that all parties in the employment relationship can understand, instead of the over-complicated system of decades past.
However, the question thus becomes whether the Rudd government has struck the right balance between simplification and appropriate protection. Baird and Williamson, for example, argue that the new minimum standards are detrimental to certain groups, particularly women, because the new awards fail to adequately cover women working in social services, call centres and the health sector.
The safety net
Under the National Employment Standards, employees have certain minimum conditions. Together with pay rates in modern awards (which also generally take effect from 1 January 2010) and minimum wage orders, the NES makes up the safety net that cannot be altered to the disadvantage of the employee.
There are ten minimum conditions covered under the NES:
- maximum working week
- request for flexible working arrangements
- parental leave and related entitlements
- annual leave
- personal/carer’s leave and compassionate leave
- long service leave
- community service leave
- public holidays
- notice of termination and redundancy pay
- fair work information statement
As of its date of conception, all of FWC's members were previously members of the Australian Industrial Relations Commission. It has as members a President (Justice Iain JK Ross AO), a number of Deputy Presidents and Commissioners. The General Manager reports to the President and is responsible for administration. This position replaced the Industrial Registrar. The inaugural President was (Justice Giudice).
Justice Iain JK Ross AO (M)
Vice President A Hatcher (S), Vice President J Catanzariti (S).
Vice President MJ Lawler (M), Vice President GR Watson (S), Justice AJ Boulton AO, Senior Deputy President (S), Senior Deputy President IR Watson (M), Senior Deputy President AM Harrison (S), Senior Deputy President JM Acton (M), Senior Deputy President LEC Drake (S), Senior Deputy President MG O'Callaghan (A), Senior Deputy President JM Hamberger (S), Senior Deputy President PJ Richards (B), Deputy President RS Hamilton (M), Deputy President BP McCarthy (P), Deputy President PJ Sams AM (S), Deputy President G Smith (M), Deputy President A Booth (S), Deputy President I Asbury (B), Deputy President A Gooley (M), Deputy President J Lawrence (S), Deputy President V Gostencnik (M), Deputy President J Kovacic (M).
Commissioner JCW Lewin (M), Commissioner WD Blair (M), Commissioner AL Cribb (M), Commissioner HM Cargill (S), Commissioner B Deegan (C), Commissioner PJ Spencer (B), Commissioner MG Roberts (S), Commissioner BD Williams (P), Commissioner DS McKenna (S), Commissioner IW Cambridge (S), Commissioner DJ Cloghan (P), Commissioner JF Ryan (M), Commissioner PJ Hampton (A), Commissioner J Roe (M), Commissioner MP Bissett (M), Commissioner C Simpson (B), Commissioner T Lee (M), Commissioner S Booth (B), Commissioner B Riordan (S), Commissioner G Bull (S), Commissioner D Gregory (M), Commissioner L Johns (M), Commissioner N Wilson (M).
ref>"List of FWC members". Fair Work Commission. Retrieved 5 January 2013.</ref>
- "About Amendment Act". Fair Work Commission. Retrieved 5 January 2013.
- Taylor, Jeremy (1 July 2009). "Unions welcome new Fair Work act". The 7:30 Report. Retrieved 5 January 2013.
- Fair Work Act 2009
- Fair Work Information Statement, Fair Work Ombudsman
- Cooper, R. and Ellem, B. (2009), 'Fair Work and the Re-regulation of Collective Bargaining', Australian Journal of Labour Law, 22 (3), pp. 284–305.
- Sheldon, P. (2008). What collective bargaining future for Australia? Lessons from international experience. In J. Riley and P. Sheldon (eds), Remaking Australian Industrial Relations (pp. 235–48).
- Cooper, R. (2009). The 'New' Industrial Relations and International Economic Crisis: Australia in 2009. Journal of Industrial Relations. Vol. 52, No. 3. pp. 261–74.
- Cooper, R. & Ellem, B. (2009) 'Fair Work and the Re-regulation of Collective Bargaining', Australian Journal of Labour Law, vol. 22, No. 3, pp. 284–305.
- Fair Work Act 2009, Section 228: Bargaining representatives must meet the good-faith bargaining requirements. www.fwc.gov.au
- Fair Work Act 2009, Section 229: Applications for Bargaining Orders.
- Fair Work Act 2009, Section 230: When FWA may make a Bargaining Order.
- Fair Work Act 2009, Section 235: When FWA may make a Serious Breach Declaration. www.fwc.gov.au
- Fair Work Act 2009, Section 269: When FWA must make a bargaining related workplace determination.
- Fair Work Act 2009, Division 3: Bargaining and Representation During Bargaining.
- Fair Work Act 2009, Division 5: Mandatory Terms of Enterprise Bargaining.
- Baird, M., Frino, B. & Williamson, S. (2009) Paid maternity and paternity leave and the emergence of ‘Equality bargaining’ in Australia: An analysis of Enterprise Agreements, 2003–2007. Australian Bulletin of Labour. Vol. 35, No. 4. pp. 671–691.
- Fair Work Act 2009, Section 241: Terms of Employment- Objects of this Division
- Fair Work Act 2009, Section 65: Requests for Flexible Working Arrangement"] www.fwc.gov.au
- Baird, M., Williamson, S., (2009) ‘Women, Work and Industrial Relations in 2008’, Journal of Industrial Relations, 51(3).
- "National Employment Standards". www.tresscox.com.au
- "National Employment Standards". www.fairwork.gov.au