Lec 7: Industrial Relations

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					                           Lec 7: Industrial Relations
Federal IR System:
 Historically – fed IR laws rely on power over conciliation and arbitration of interstate industrial
  disputes: s51(xxxv) Constitution
      o Focus on dispute rather than relationships
      o Must be interstate
Workplace Relations Amendment (Work Choices) Act 2005 (Cth):
 Changed everything – relied on corporations power s51(xx)!
 Constitutional validity challenged but upheld: NSW v Commonwealth (2006)
Fair Work Act 2009 (Cth)
  S51(xx) gives power over “foreign corporations, and trading or financial corporations formed within
   the limits of the Cth”
 Also relied on:
        o Trade and commerce power s51(i) – extend FWA to cover all persons employed as waterwide
           workers or flight crew for purposes of international trade
        o Matters relating to any department of the Cth public service s51(ii)
        o Reference power s51(xxxvii)
 “National system employer”: s14(1)
        o Constitutional corporation – employs an individual
        o Commonwealth – employs an individual
        o Commonwealth authority – employs an individual
        o Person (in connection with constitutional trade/commerce) employs an individual as flight crew,
           maritime employee, waterside worker
        o Corporation incorporated in Territory – employs an individual
        o Person carries on activity in Territory – employs individual in connection with activity in Terri.
 “Constitutional corporation”
        o s12 FWA: a corporation to which s51(xx) Con applies
        o Body incorporated under Aus law; AND engaged (or substantially) in trading and financial
        o Gen: comps which carry out commercial activities with view of earning revenue, but may also
           include incorp associations and cooperatives
        o “Trading corporation” – buys, sells, exchanges, barters goods/services (business of commerce).
           Trading activities must be substantial/sig part of activities.
        o “Financial corporation” – deals substantially/extensively in commercial dealings in finance
           (borrowing, lending, banking, insurance, management/advisory services re finances)
State referral of IR power
   State referred powers to Cth  extend application of FWA to ALL private sector employees not
    covered by s14 FWA.
        o Otherwise corporations power CAN’T affect employees in unincorp associations
   WA has not referred powers.
   S14(2): some employees remain under State system:
        o Employees integral to State/Territory/local gov admin
        o Listed in s6 of state acts
        o NOTE: unlawful termination provs in Pt 6-3 and 6-4 FWA apply to these employees still!
State IR laws
   FWA overrides State IR laws to create national system: s26 FWA
   Excludes:
       o State anti discrim and equal opportunity laws still work: s27(1A)
       o Matters listed in s27(2):
               Super, WC, OHS
                 Outworkers
                 Child labour
                 Training arrangements
                 Long service leave
                 Leave for victims of crim
                 Attendance for service on a jury or emergency services
                 Public holidays
                 Provision of essential services or emergencies – directions to work/not work.
                 Regulation of work associations/unions
                 Workplace surveillance
                 Business trading hrs
                 Claims for enforcements of employment contracts
   State referred powers to Cth  extend application of FWA to ALL private sector employees not
    covered by s14 FWA.
   WA has not referred powers.
Fair Work Act
   Provides for:
       o Min safety net of 10 National Employment Standards (NES)
       o New National Workplace Tribunal – Fair Work Australia (FWA) to replace Australian
           Industrial Commission (AIRC)
       o New inspectorate body – Fair Work Ombudsman (FWO)
       o Advice service for employers/employees
       o Modern awards
       o Revised enterprise bargaining arrangements
       o Streamlined protections – workplace rights, industrial activities, unfair dismissal
10 NES: Pt 2-2 FWA
1. Max hours of work
        o FT employee - 38 “ordinary hours” per wk: 62.1.A
        o PT employee – ordinary hours worked: 62.1.B
        o Employee may refuse to work additional hrs if unreasonable: s62(2)
2. Requests for flexible work arrangements – eligible employees are given right to request (but no
    obligation to accept request)
3. Parental leave – eligible employees can request 24 mths max
4. Annual leave – 4 wks paid annual leave for each year of service for FT employees
5. Personal, carers, compassionate leave – all employees (except casual) entitled to 10 days/yr
6. Community service leave – 10 days paid leave for jury service and unlimited unpaid leave for voluntary
    emergency management activity
7. Long service leave – Fed gov currently working to make uniform min long service leave (meanwhile
    State applies)
8. Public holidays – 8 paid public holidays per year
9. Notice of termination and redundancy pay – depends on years of service, diff levels of
    termination/redundancy pay (set out in s119(2))
10. FW Information Statement – all employees must be given copy of FWIS by employer prior to
Fair Work Australia (Trib) – Functions:
   Provide safety net of min conditions (incl wages) in awards
   Facilitate good faith bargaining and making enterprise agts
   Grant remedies for unfair dismissal
   Regulate taking industrial action
   Resolve disputes via conciliation, mediation, arbitration
   Functions re workplace determinations, equal remuneration, transfer of business, general protections,
    right of entry and stand down
3 types of members:
 Primary FWA members – President, Deputy Predients and Commissions appointed until 65 FT
 Minimum Wage Panel members – appointed for set period of 5 yrs max and PT
 Members of state industrial tribunals – hold dual appointment.
FWO – Functions: Pt 5-2
   Role: promoting harmonious, production, cooperative workplace relations and ensuring compliance
    with laws
   Does:
       o Provide advice/info about system
       o Educate Aus workers re their rights/obligations
       o Investigates complaints or contraventions of laws, awards, agts
       o Litigates to enforce laws and deter ppl from breaking laws
   FW Inspectors worked in FWO and may investigate:
       o Pay slip, time, wages record keeping
       o Freedom of association
       o Right of entry by unions
       o Underpayments
       o Coercion, undue influence, pressure, misleading/deceptive conduct in agt making
       o Transfer of business
       o Sham contracting
       o Unprotected industrial action
       o Discrimination
Modern Awards
  Industry/occupation based
  Apply to all employers/employees who perform work covered by award
       o Excludes employees who are paid guaranteed amt of $108,300/yr
 MA may contain terms re:
       o Min wages
       o Type of employment: FT, PT, casual
       o Overtime and penalty rates
       o Work arrangements: rosters, variation to working hrs
       o Annualised wage or salary
       o Allowances eg. travel
       o Leave (leave loading and taking leave)
       o Super
       o Procedures for consultation, representation, dispute settlement
       o Employing outworkers and work they perform
       o Industry specific redundancy scheme
 MA must have flexible term – employers/ees can negotiate changes to meet individual needs
 Most MA contain transitional provisions – allow changes to be introduced progressively
Enterprise Awards
 Began reviewing in July 2009 – continue until Dec 2013
 Can apply to modernize enterprise prereform awards + Notional Agts Preserving State Awards
   (NAPSA) where employer is constitutional corp
       o Can apply from 1 July 2009 to 31 Dec 2013
       o On 31 Dec 2013, all enterprise prereform awards and NAPSA will terminate anyway
Other award modernization:
 FWA also review State awards covering non-constitutional corps (cos of State referral)
 FWA also review all awards and terminate awards completely replaced by modern award
 Can apply to modernize enterprise prereform awards + Notional Agts Preserving State Awards
   (NAPSA) where employer is constitutional corp
                                       Modern Awards
Min wage:
 Specified in MA
     o Also sets national min wage for employees NOT covered by MA (including special min wage
          for juniors, trainee employees, disabled employees)
       o Also sets safety net casual loading for casual employees NOT covered by MA or agt
 Set/adjusted by Minimum Wages Panel in FWA: s620
      o MWP has 7 members of FWA including president – generalist and specialist expertise
      o MWP must consider wage-setting parameters – eg. macroimpact of decisions
      o FWA may commission research into wages-related issues
 Annual reviews, but may vary outside reviews in limited circ – eg. if:
      o Work value reasons to justify variation
      o Variation outside the 4 yearly review and annual wage review is necessary to achieve fair and
        relevant safety net.
 MWP must consider:
     o Performance/competitiveness of national economy – productivity, business competitiveness and
        viability, inflation, employment growth
     o Promoting social inclusion – increased workforce participation
     o Relative living standards and needs of low paid
     o Principle of equal pay for work of equal value
     o Providing comprehensive range of fair min wage for juniors, trainees, disabled employees
 Changes take effect from 1st pay period after 1 July each year  enforceable by law
                        Industrial Instruments under FWA
Enterprise agts
 Now: only enterprise agts can be made
     o All other agts will continue until terminated/replaced eg. collective agts, Australian Workplace
         Agts, Individual Transitional Employment Agreements.
 Enterprise agts: between employer/employee
     o Can be employer with group of employee
     o Can be 1+ employer with groups of employees
     o Can be 1+ employer with 1+ union (BEFORE any employees employed)
 3 ways to start:
     o Employer/employee reps agree to bargain
     o Employer starts bargaining
     o Employees rep starts bargaining (if they have maj support of employee and Majority Support
         Determination from FWA)
 Once bargaining starts 
      o Employer must notify employees (prescribed form) about their rights to appoint bargaining
      o Parties must bargain in good faith: s228
              Attend/participate in meetings at reasonable times
              Disclose relevant info in timely manner
              Respond to proposals in timely manner
              Genuinely consider proposal and provide reasons for responses
              Refrain from capricious/unfair conduct that undermines freedom of association or
                 collective bargaining (1)
              Does NOT require concessions or to reach agreement (2)
 If concerns about NOT good faith  can get bargaining orders from FWA.
 Breaching bargaining order  max fine $33K, other Ct orders + arbitration
 Bargaining reps can also apply to FWA – to determine scope of agt, to determine if too many
   bargaining reps, and other general help
 Agt must be approved by FWA!
Low paid employees: Pt 9 FWA
 Separate multi-employer bargaining stream for low paid workers (eg. childcare, aged care, community
   services, security, cleaning).
 Objects: s241
       o Assist/encourage LPE and employers to make enterprise agt that meets their needs
       o Assist LPE and employers to identify improvements to productivity and service delivery
          through bargaining for enterprise agt that covers 2+ employers (while taking into acct needs to
          individual enterprises)
       o Address constraints on ability of LPE and employers to bargain – lack of skills, resources,
          bargaining strength/experience
       o Enable FWA to assist LPE and employers to facilitate bargaining for enterprise agt.
 Bargain rep or org may apply to FWA for entry to low-paid stream to bargain with specified list of
 FWA then considers if in PUBLIC INTEREST
 Once in, FWA can assist  compulsory conferences, good faith bargaining orders, dispute resolution
 NOTE: parties in stream cannot take protected industrial action in support of bargaining claim
                                      Industrial Disputes
Disputes: Pt3-3 FWA
 Industrial action is PROTECTED or UNPROTECTED
Protected IA:
 Employees may take PIA to support claims during collective bargaining
        o ONLY protected if authorised by mandatory secret ballot + other FWA requirements
        o No ballot req if responding to IA taken by employer
        o Bargaining reps must give employers 3+ working days written notice of PIA
 Employers may also do PIA by locking gout employees who have taken IA
 If PIA causes (or threatens to cause) SIGNIFICANT HARM to Aus economy (or part), endangers
    safety, health or welfare of population (or part)  FWA must order parties to stop.
 If PIA is protracted and causing (threatening to cause) IMMINENT SIG economic harm to parties and
    dispute cannot be resolve in foreseeable future:
        o FWA may determine a settlement.
 Criteria to determine settlement:
        o Merits of case
        o Interest of parties and public interest
        o How productivity may be improved in business
        o Conduct of parties during bargaining and extent they have complied with GF
        o Any incentives to continue bargaining.
Unprotected IA:
o Where:
        o taken before nominal expiry date of enterprise agt,
        o bargaining reps are engaging in pattern bargaining
        o parties taking IA are not genuinely trying to reach agt
        o serious breach declaration in place
o FWA may order to stop any UIA.
o If FWA unable to determine if UIA within 2 days  must issue interim orders to stop IA unless
    contrary to public interest.
   Structured negotiation involving 3rd party (conciliator) t0 assist:
        o Isolate disputed issues
        o Develop options
        o Reach agt that fits interest of all parties
   Conciliator cannot impose terms of settlement.
   Advantages of conciliation:
        o Flexible – no binding decision
        o Informal – no formal evidence, wit etc
        o Confidential
Unfair dismissal
   Unfair dismissal  “harsh, unjust or unreasonable”: s385 FWA
   FWA must consider factors in s387
General protection provisions: Pt 3-1
   General protections – workplace rights, freedom of association, discrimination
   National system employer (NSE) may NOT take “adverse action” against employee on grounds in s346,
    351, 352 of FWA
       o Dismissing an employee
       o Altering position of employee
       o Discriminating against employee
       o Refusing to hire prospective employee
       o Discriminating against prospective employee in terms offers
       o Termination of contract with independent contractor
       o Altering contractor’s contractual position for unlawful reasons
   S351: employer CANNOT take action against employee or prospective employee because of their:
       o Race, colour, sex, sexual preference, age, physical/mental disability, marital status, family or
           carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social
       o This does NOT apply to lawful conduct under discrimination or human rights law (eg.
           affirmative action)
       o Also defence: action is due to “inherent requirements” of a position: Qantas v Christie HCA
   Remedy: Pt 4(1)
       o Application for FWA to convene private dispute conference (compulsory where termination)
       o Must apply within 60 days of dismissal.
       o FWA certifies that all reasonable attempts to resolve dispute have failed + only remedy is Ct
           (interim injunction to stop proposed dismissal)
       o Commence proceedings in Fed Ct or FMC.
       o Remedy: max $33K fine or compensation order, order of reinstatement (s545-546)
       o ONUS: on employer to prove action not prohibited reason: s360-361.
Unlawful termination: Pt6-4 FWA
   This applies to ALL employers/employees – not just National System
   Unlawful termination is dismissal where:
         o Failure to give employee req notice (or payment in lieu of notice): s117 (NSE) and 760 (non
            NSE) FWA
         o Termination for discriminatory reasons: s772 FWA
   If terminated because of redundancy + reason is bcos employees proposes to take parental leave 
    prohibited reason: s772(3).
                                 Transfer of business: Pt 2-8
Transfer of business: where
 Old employer terminates employment of an employee
 Within 3 mths, employee becomes employed by new employer
 Employee’s work is same or substantially the same as old work
 Connection between old and new employer as described in (3)-(6)
 Transfer of assets
 Work is outsourced
 Prev outsourced work is insourced
 New employer is associated entity of old employer
 New employer may be bound by transferring industrial instrument (prevails over MA) for indefinite
   period of time.
 Transferring instrument may also apply to new (non-transferring) employees
FWA Orders:
 Employers/ees can apply to FWA for orders:
                That transferable instrument does NOT cover new employer and transferring employees
                Enterprise agt or MA that already covers new employer will cover transferring
                Transferring instrument to be varied


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