Academic journal article University of Western Sydney Law Review

The Fair Work Act 2009 (Cth): A New Model?

Academic journal article University of Western Sydney Law Review

The Fair Work Act 2009 (Cth): A New Model?

Article excerpt




The Fair Work Act 2009 (Cth) ('FWA'), most of the provisions of which commence on 1 July 2009 c, needs to be understood in the wake of three waves of neo-liberal labour market reforms. The last fundamental change to the law of employment in Australia occurred of course on 27 March 2006 when amendments made by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) ('Work Choices') to the Workplace Relations Act 1996 (Cth) ('WR Act') commenced. The changes made by Work Choices constituted some of the most significant changes to individual and collective employment relations law in Australia since the enactment over one hundred years ago of the Conciliation and Arbitration Act 1904 (Cth). However, Work Choices constituted the third wave of labour market reforms in Australia aimed at reducing external inflexible forms of regulation and increasing greater flexibility in the labour market. (2)

The first wave was the legislation introduced by the Keating Labor government which increased the incidence of agreement making with much less reliance on arbitration and a centralised system but which retained an arbitration system primarily concerned with making awards as a safety net of minimum wages and conditions. (3) Included in the new bargaining regime established by the Industrial Relations Reform Act 1993 (Cth) was provision for enterprise flexibility agreements whose significance lay in the fact that they might be negotiated directly between employers and employees at a workplace without union involvement. These agreements were intended to be the means by which enterprise bargaining would spread to non-unionised workplaces. The second wave was the legislation introduced by the Howard Liberal/National Party coalition government in 1996 which aimed to further facilitate agreement making including non-union agreements made directly by employers with employees. (4) This wave expanded the alternative forms of agreement making under federal legislation available to employers and employees by introducing a form of enterprise agreement made between the employer and individual employees: Australian Workplace Agreements ('AWAs'). Employers that now wished to could negotiate directly with each of their individual employees. The second wave also reduced the coverage afforded to employees by awards by limiting award making to a reduced set of subject matters or allowable award matters.

Further reform was introduced by Work Choices following the 2004 election. These reforms included:

* Further promoting the option of direct bargaining between employers and individual employees by providing that AWAs can 'trump' any other type of workplace agreement in the sense that Work Choices placed AWAs at the apex of a hierarchy of statutory instruments which placed collective workplace agreements next and awards at the bottom. An instrument higher in the hierarchy operated to the exclusion of those instruments below it.

* Further reducing the scope for award making under federal arbitration.

* Fundamentally changing the approval process for federal workplace agreements by removing the no disadvantage test, which related agreement outcomes for employees to existing outcomes for employees under awards.

* Removing the remedy of unfair dismissal from small businesses.

* Restricting further the scope for unions to take protected industrial action when negotiating collective workplace agreements.

* Removing significantly but not entirely the ability of unions and employees to circumvent the federal regime for workplace relations by choosing to access the often more favourable protections and remedies available under state industrial legislation.

Work Choices also had a significant impact on the institutional framework for industrial relations by:

* Expanding the existing federal system with the aim of creating one national system of workplace relations. …

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