Fair Work Act 2009

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Fair Work Act 2009
Coat of Arms of Australia.svg
Parliament of Australia
Commenced1 July 2009
Introduced by Rudd Government
Related legislation
Industrial Relations Act 1988
Workplace Relations Amendment Act 2005
Status: In force

The Fair Work Act 2009 is an Australian law passed by the Rudd Government after coming into power in 2007 to reform the industrial relations system in Australia, [1] [2] commencing on 1 July 2009. It repealed the previous Howard Government's WorkChoices 2005 legislation and started a new series, still in force as of September 2020. [3] The Act established Fair Work Australia, later renamed the Fair Work Commission.

Contents

The related Fair Work (Registered Organisations) Act 2009 superseded the Workplace Relations Act 1996 (which had in turn superseded the Industrial Relations Act 1988 ). [4]

Collective bargaining

Collective bargaining regulates the terms under which employers hire employees and the future treatment of future employees. [5] Collective bargaining is a mechanism which allows employees, employers and representational parties to express their objectives with respect to work. [5]

On 1 July 2010, the new bargaining arrangements under the Fair Work Act became operational. [6] Contrary to the individual arrangements that were dominant under the previous Coalition WorkChoices legislation, the new regulations put a stronger emphasis on enterprise based bargaining with the removal of individual Australian Workplace Agreements. [6] The Act continues to outlaw pattern bargaining [6] and removes the distinction between union and non-union agreements. [6]

Good-faith bargaining

Good-faith bargaining, in which each party 'makes a sincere effort' in negotiations, is at the core of the Act. [7] The Act sets out what is meant by good-faith bargaining: 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, and recognizing and bargaining with the other bargaining representatives for the agreement. [8]

Parties may seek bargaining orders from the Fair Work Commission if they believe the other party has failed to comply with these good-faith bargaining obligations. [7] Good-faith bargaining does not require a bargaining representative to make concessions during bargaining for the agreement, nor does it require a bargaining representative to reach agreement on the terms that are to be included in the agreement.

Bargaining orders

According to the Act, if one or more of the bargaining parties does not meet the good-faith requirements, 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 a reasonable time within which to respond to those concerns. [9] However, Section 229 of the Act states it may not be necessary to comply with the notice requirements should the Fair Work Commission be 'satisfied that it is appropriate in all the circumstances to do so'. [9]

If the party does not respond appropriately to the written notice, the Fair Work Commission can make a bargaining order. [10] Should the relevant party continue to ignore the good-faith requirements following this order, the Fair Work Commission can issue a serious breach declaration. [11]

If the bargaining representatives have not settled the issue of non-compliance by the end of the post-declaration negotiating period (generally 21 days), the Fair Work Commission can issue a bargaining related workplace determination. [12]

Bargaining agents

The Act 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. The notification time is the time when the employer agrees to bargain or initiates bargaining when the FWC determines that there is majority support among employees for collective bargaining, or when a scope order (an FWC-issued order to resolve questions about the employees covered by an 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 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 described in Division 3 of the Fair Work Act 2009, [13] and can be the employer, a person the employer appoints in writing, the employee, or a person an employee appoints in writing. [13]

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. [13] An appointment of a bargaining representative comes into force on the day specified in the instrument of appointment. The 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. [13]

Mandatory terms

Mandatory terms in an enterprise agreement are set out in Division 5 of the Act. [14] Agreements must include a flexibility term, that is, a mechanism for allowing variations in the agreement to meet needs of individual employees while still preserving basic entitlements and protections. They must include the obligation for the employer to consult with covered employees about major workplace changes that are likely to have a significant effect on the employees and allow for the representation of those employees for that consultation. The agreed-on base rate of pay cannot be below that set by the relevant modern award. [14]

Equality bargaining

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’. [15]

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. [15]

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). [15] 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 policies lowest in terms of their bargaining priorities. [15]

Good-faith bargaining (as introduced through the Act) 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. [15]

Low-paid bargaining stream

The low-paid bargaining stream creates an internationally unique stream allowing for multi-employer bargaining among previously award dependent employees. [16] Its aim is to encourage low-paid employees and their employers to engage in enterprise bargaining.

The Act highlights a number of differences that the low-paid bargaining stream incorporates from "normal" bargaining. [17] Multi-employer bargaining is permitted; the Act 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 Act also states that in this stream there will be compulsory conferences, including with third parties; good-faith bargaining orders; dispute resolution; and binding determinations. [17]

This initiative owes its origins to the debates over the impact of WorkChoices and attempts to deal with the wider problem of endemic low pay. [16]

Implications and conclusions

The Act marked a substantive change in the nature of bargaining arrangements within the Australian industrial relations system. Bargaining will be based collectively at the enterprise level, in contrast to the emphasis on individual agreements, which was encouraged under the Howard government's WorkChoices. At the heart of the new legislation is the principle of 'good-faith bargaining', which outlines the necessary behaviours of bargaining parties in negotiations.

Minimum standards

The Act reconstitutes the industrial relations safety net. All employees are entitled to the ten National Employment Standards (NES), similar to the five Australian Fair Pay and Conditions Standards under WorkChoices. [18] Additional occupation- or industry-specific conditions are protected through the new modern awards. There are 122 of these awards, compared to over 4000 under the previous system. Another change in the National Employment Standards under the Act is the 'Requests for Flexible Working Arrangements'. This NES allows parents or carers of a child under school age, or a child under 18 with a disability, the right to request a change in working arrangements to assist with the child's care. [19]

The streamlining of the award system is one of the most significant aspects of the reforms. The government, motivated by a desire to streamline, simplify, and promote flexibility and productivity, set its goal as creating a new minimum standard that all parties in the employment relationship could understand, instead of the over-complicated system of decades past.

Not all commentators agree that the Rudd government 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. [20]

The safety net

Under the National Employment Standards (NES), [21] employees have certain minimum conditions. Together with pay rates in modern awards (which also generally took 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. [22]

There are ten minimum conditions covered under the NES: a maximum number of hours in the working week, requests for flexible working arrangements, parental leave and related entitlements, annual leave, personal or carer's leave and compassionate leave, long service leave, community service leave, public holidays, a notice of termination and redundancy pay, and a fair work information statement. [22] [23]

Related Research Articles

Labour law mediates the relationship between workers, employing entities, trade unions and the government. Collective labour law relates to the tripartite relationship between employee, employer and union. Individual labour law concerns employees' rights at work also through the contract for work. Employment standards are social norms for the minimum socially acceptable conditions under which employees or contractors are allowed to work. Government agencies enforce labour law.

Collective bargaining is a process of negotiation between employers and a group of employees aimed at agreements to regulate working salaries, working conditions, benefits, and other aspects of workers' compensation and rights for workers. The interests of the employees are commonly presented by representatives of a trade union to which the employees belong. The collective agreements reached by these negotiations usually set out wage scales, working hours, training, health and safety, overtime, grievance mechanisms, and rights to participate in workplace or company affairs.

United Kingdom labour law

United Kingdom labour law regulates the relations between workers, employers and trade unions. People at work in the UK benefit from a minimum charter of employment rights, which are found in various Acts, Regulations, common law and equity. This includes the right to a minimum wage of £8.21 for over 25-year-olds under the National Minimum Wage Act 1998. The Working Time Regulations 1998 give the right to 28 days paid holidays, breaks from work, and attempts to limit excessively long working hours. The Employment Rights Act 1996 gives the right to leave for child care, and the right to request flexible working patterns. The Pensions Act 2008 gives the right to be automatically enrolled in a basic occupational pension, whose funds must be protected according to the Pensions Act 1995.

The Australian Industrial Relations Commission (AIRC), known from 1956 to 1973 as the Commonwealth Conciliation and Arbitration Commission and from 1973 to 1988 as the Australian Conciliation and Arbitration Commission, was a tribunal with powers under the Workplace Relations Act 1996 that existed from 1956 until 2010. It was the central institution of Australian labour law. The AIRC replaced a previous system of industrial courts, which broadly speaking, was engaged in the same functions, but with superior independence and powers.

United States labor law The rights of working people in USA to fair wages, limits on working time, voice at work, equal treatment, and job security.

United States labor law sets the rights and duties for employees, labor unions, and employers in the United States. Labor law's basic aim is to remedy the "inequality of bargaining power" between employees and employers, especially employers "organized in the corporate or other forms of ownership association". Over the 20th century, federal law created minimum social and economic rights, and encouraged state laws to go beyond the minimum to favor employees. The Fair Labor Standards Act of 1938 requires a federal minimum wage, currently $7.25 but higher in 28 states, and discourages working weeks over 40 hours through time-and-a-half overtime pay. There are no federal or state laws requiring paid holidays or paid family leave: the Family and Medical Leave Act of 1993 creates a limited right to 12 weeks of unpaid leave in larger employers. There is no automatic right to an occupational pension beyond federally guaranteed social security, but the Employee Retirement Income Security Act of 1974 requires standards of prudent management and good governance if employers agree to provide pensions, health plans or other benefits. The Occupational Safety and Health Act of 1970 requires employees have a safe system of work.

Enterprise bargaining is an Australian term for a form of collective bargaining, in which wages and working conditions are negotiated at the level of the individual organisations, as distinct from sectoral collective bargaining across whole industries. Once established, they are legally binding on employers and employees that are covered by the Enterprise bargaining agreement. An Enterprise Agreement (EA) consists of a collective industrial agreement between either an employer and a trade union acting on behalf of employees or an employer and employees acting for themselves.

An industrial award, sometimes known simply as an award, is a ruling in Australia handed down by either the national Fair Work Commission or by a state industrial relations commission which grants all wage earners in one industry or occupation the same minimum pay rates and conditions of employment such as leave entitlements, overtime and shift work, as well as other workplace-related conditions. The national awards, with the National Employment Standards, provide a minimum safety net of terms and conditions of employment for all national system employees. The pay rates are often called award wages.

The duty of fair representation is incumbent upon U.S. labor unions that are the exclusive bargaining representative of workers in a particular group. It is the obligation to represent all employees fairly, in good faith, and without discrimination. Originally recognized by the United States Supreme Court in a series of cases in the mid-1940s involving racial discrimination by railway workers' unions covered by the Railway Labor Act, the duty of fair representation also applies to workers covered by the National Labor Relations Act and, depending on the terms of the statute, to public sector workers covered by state and local laws regulating labor relations.

<i>Canada Labour Code</i>

The Canada Labour Code is an Act of the Parliament of Canada to consolidate certain statutes respecting labour. The objective of the Code is to facilitate production by controlling strikes & lockouts, occupational safety and health, and some employment standards.

An Australian workplace agreement (AWA) was a type of formalised individual agreement negotiated between an employer and employee in Australia that existed from 1996 to 2009. Employers could offer a "take it or leave it" AWA as a condition of employment. They were registered by the Employment Advocate and did not require a dispute resolution procedure. These agreements operated only at the federal level. AWAs were individual written agreements on terms and conditions of employment between an employer and employee in Australia, under the Workplace Relations Act 1996. An AWA could override employment conditions in state or territory laws except those relating to occupational health and safety, workers' compensation, or training arrangements. An AWA was required to meet only the most minimal Australian Fair Pay and Conditions Standard. Agreements were not required to include effective dispute resolution procedures, and could not include prohibited content. Agreements were for a maximum of five years; approved, promoted and registered by the Workplace Authority; operated to the exclusion of any award; and prohibited industrial action regarding details in the agreement for the life of the agreement. The introduction of AWAs was a very controversial industrial relations issue in Australia.

WorkChoices

WorkChoices was the name given to changes made to the federal industrial relations laws in Australia by the Howard Government in 2005, being amendments to the Workplace Relations Act 1996 by the Workplace Relations Amendment Act 2005, sometimes referred to as the Workplace Relations Amendment Act 2005, that came into effect on 27 March 2006.

The Australian Fair Pay and Conditions Standard was a set of five minimum statutory entitlements for wages and conditions introduced as part of the Howard Government's WorkChoices amendments to Australian labour law in 2006 and then abolished by the Fair Work Act 2009 in 2010.

Labor relations

Labor relations is a field of study that can have different meanings depending on the context in which it is used. In an international context, it is a subfield of labor history that studies the human relations with regard to work – in its broadest sense – and how this connects to questions of social inequality. It explicitly encompasses unregulated, historical, and non-Western forms of labor. Here, labor relations define "for or with whom one works and under what rules. These rules determine the type of work, type and amount of remuneration, working hours, degrees of physical and psychological strain, as well as the degree of freedom and autonomy associated with the work."

Employment Relations Act 2000

The New Zealand Employment Relations Act 2000 is a statute of the Parliament of New Zealand. It was substantially amended by the Employment Relations Amendment Act 2001 and by the ERAA 2004.

A collective agreement, collective labour agreement (CLA) or collective bargaining agreement (CBA) is a written contract negotiated through collective bargaining for employees by one or more trade unions with the management of a company that regulates the terms and conditions of employees at work. This includes regulating the wages, benefits, and duties of the employees and the duties and responsibilities of the employer or employers and often includes rules for a dispute resolution process.

The Fair Work Commission (FWC), until 2013 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 in Australia. Operations commenced on 1 July 2009. It is the successor of the Australian Industrial Relations Commission, and also performs functions previously performed by the Workplace Authority and the Australian Fair Pay Commission. Since March 2012, Iain JK Ross has been the President of FWC, and Bernadette O'Neill is its current General Manager. As of 29 May 2019, it operates under the portfolio of the Australian Attorney-General, the Hon. Christian Porter MP.

South African labour law regulates the relationship between employers, employees and trade unions in the Republic of South Africa.

The National Employment Standards (NES) is a list of ten minimum entitlements for employees in Australia who are covered by the Fair Work Act 2009. An award, enterprise agreement, other registered agreement or employment contract cannot provide for conditions that are less than the national minimum wage or the NES and they can not be excluded. The NES have applied to employees since 1 January 2010, having replaced the previous five entitlement standard under the WorkChoices legislation.

<i>JI Case Co v National Labor Relations Board</i>

JI Case Co v National Labor Relations Board321 US 332 (1944) is a US labor law case, concerning the scope of labor rights in the United States.

Nicholas Blain

Alexander Nicholas John Blain is an economist, specialising in industrial relations. He served as: a Presidential Member of the Australian Industrial Relations Commission; Chief Adviser to Western Australia's Labour Relations Minister, The Hon. Graham Kierath MLA, in Premier Richard Court's Liberal-National Government; and Head of Department of Industrial Relations at The University of Western Australia.

References

  1. Taylor, Jeremy (1 July 2009). "Unions welcome new Fair Work Act". The 7:30 Report. Retrieved 5 January 2013.
  2. "Fair Work timeline". Sir Richard Kirby Archives. 20 March 2017. Retrieved 11 September 2020.
  3. "Fair Work Act 2009". Australian Government. Federal Register of Legislation. 7 April 2009. Retrieved 11 September 2020.
  4. "Fair Work (Registered Organisations) Act 2009". Australian Government. Federal Register of Legislation. Retrieved 11 September 2020.
  5. 1 2 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).
  6. 1 2 3 4 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.
  7. 1 2 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.
  8. Fair Work Act 2009, Section 228: Bargaining representatives must meet the good-faith bargaining requirements. www.fwc.gov.au
  9. 1 2 Fair Work Act 2009, Section 229: Applications for Bargaining Orders.
  10. Fair Work Act 2009, Section 230: When FWA may make a Bargaining Order.
  11. Fair Work Act 2009, Section 235: When FWA may make a Serious Breach Declaration. www.fwc.gov.au
  12. Fair Work Act 2009, Section 269: When FWA must make a bargaining related workplace determination.
  13. 1 2 3 4 Fair Work Act 2009, Division 3: Bargaining and Representation During Bargaining.
  14. 1 2 Fair Work Act 2009, Division 5: Mandatory Terms of Enterprise Bargaining.
  15. 1 2 3 4 5 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.
  16. 1 2 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.
  17. 1 2 Fair Work Act 2009, Section 241: Terms of Employment- Objects of this Division
  18. "Fair Work Act 2009". Fwc.gov.au. 24 July 2016. Retrieved 30 July 2016.
  19. Fair Work Act 2009, Section 65: Requests for Flexible Working Arrangement"] www.fwc.gov.au
  20. Baird, M., Williamson, S., (2009) 'Women, Work and Industrial Relations in 2008', Journal of Industrial Relations, 51(3).
  21. "National Employment Standards" Archived 7 January 2015 at the Wayback Machine . www.tresscox.com.au
  22. 1 2 "National Employment Standards". www.fairwork.gov.au
  23. Fair Work Information Statement Archived 5 February 2015 at the Wayback Machine .