The Fair Work Act: As Good as It Gets?

Article excerpt

Introduction

At the time of writing, a minority Australian Labor Party (ALP) government led by Julia Gillard had just been returned. During the 2010 Federal election, both the ALP and the Liberal-National Coalition indicated that the Fair Work Act would remain in place, thereby reducing the pivotal role that industrial relations had occupied in the 2007 Federal election. During the campaign, both the ALP and the Australian Council of Trade Unions (ACTU) had sought, with a vigorous advertising blitz, to resurrect the spectre of the Howard Coalition government's unpopular 2005 Work Choices legislation, which had restricted collective rights. The Opposition leader, Tony Abbott, formerly an advocate of Work Choices (Abbott 2009: 87-90), had been forced to declare and frequently reassert that it was 'dead, buried and cremated' (Johnson 2010).

In the wake of the 2010 election, it seems timely to consider the challenges and opportunities the Fair Work Act presents for workers, unions, employers and all those concerned with industrial relations policy and legislation. These are the concerns to which the papers in this symposium are devoted, as they explore the likely impact of the Fair Work Act and its implications. Each paper arose from a forum on the Act jointly organised by the University of Western Sydney and the University of New South Wales Industrial Relations Research Centre, held in August 2009. The forum, organised around considerations of the 'Promises, Potential, Protections and Pitfalls' of the Fair Work Act, attracted a variety of contributions and participants from universities, employer associations, unions and community groups. A primary purpose of the day was to inform the diverse audience of the main tenets of the Act and likely impacts on different sections of the workforce and community, as the legislative changes played out in workplaces across the country.

Some forum contributors submitted revised versions of their papers to this ELRR symposium. The purpose of this introductory piece is to background the articles that follow by giving voice to the questions and debates that arose on the day, and the political and industrial context which gives them ongoing currency. It sets the context that gave rise to the Act and explores areas that it leaves only partially addressed, such as the need for greater worker voice and participation.

The Fair Work Act includes among its main principles and goals:

* Provision of legislation that is 'fair to working Australians';

* The ensuring of 'a guaranteed safety net of fair, relevant and enforceable minimum standards and conditions through the National Employment Standards, modern awards and national minimum wage orders';

* Prevention of the use of individual agreements to undermine this safety net;

* Encouragement of work-family balance through the promotion of flexible

working arrangements;

* Protection of freedom of association and prevention of discrimination through effective grievance, dispute and compliance procedures and mechanisms;

* Requirements for good faith bargaining obligations and rules circumscribing industrial action, designed to strengthen enterprise bargaining (Fair Work Act 2009, s.3).

The articles in this symposium probe the ways the Act frames and gives effect to the concept of fairness. They were written in the historical context of Work Choices, the union and community Your Rights at Work campaign leading up to the 2007 Federal election, and the negotiations and compromises that shaped the Act's eventual form. The restorative capacity of the Fair Work Act, given the intense debates and conflicts that preceded it, remains a continuing point of contestation. Does the good faith bargaining provision encourage good faith relationships both within bargaining and in employment relationships more generally? What support does the Act give to unionisation and collective bargaining? …