As alluded to above and in Chapters 11-16 & 18 & 21 in particular, there is room for the FW Commission’s jurisdiction to be modified and broadened in order for the industrial relations system to provide more effective pathways to resolving rights and interest based disputes. Further, as we raised in Chapter 8, reforms to the minimum wage setting framework should be pursued to more closely align that function with the distributional purpose of the industrial relations system.
Within the footprint of its present functions, the FW Commission is in our experience functioning highly effectively subject to three concerns considered elsewhere: the Award review process (see Chapter 9), the processing of Right of Entry matters (see Chapter 6) and the inflexibility and delay in the processing of unfair dismissal matters (see Chapter 18). Unions report the FW Commission processes as generally user friendly, especially compared to other institutions. In particular, unions value the ability to file matters electronically, use email for routine correspondence and ease of access to transcripts and decisions. The ACTU and other stakeholders recently reported our experiences to KPMG, who had been appointed by the General Manager of the FW Commission to conduct a benchmarking study on the FW Commission which looked at its effectives as compared to other tribunals and courts. We are unaware of whether the KPMG study has been completed. Both its findings and its methodology may be of interest to the PC.
The raw numbers contained in the annual reports of the FW Commission provide a sense of the significant caseload of the FW Commission and in that context it is to be commended for the fact that criticism of it are at the margins of exceptions and well distant from being the rule.
The FW Commission 2013-14 Annual Report indicates that the FW Commission:
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Received 37,066 applications;
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Conducted 19, 620 hearings and conferences;
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Made 13,302 decisions, orders or determinations; and
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Had 3,259,939 web site visits and 208,102 telephone inquiries.
A breakdown of the total applications the FW Commission received for the 2013-14 reporting period743 appears in Table below.
Table : Breakdown of applications made to the FW Commission 2013/14
Case matter No. heard Median no. days
Agreements 6,754 17
orders relating to good faith bargaining 422 10
dispute resolution 3295 20
orders relating to industrial action 989 2
general protections involving dismissal 2879 29
unfair dismissals 14,796 46
appeals 214 78
applications to terminate individual agreement
based transition instruments 2841 35
registered organisations; 1381 -
Other matters 3495 -
The bulk of matters were unfair dismissal claims and approvals of agreements. Seventy-nine percent of unfair dismissal claims were conciliated. 92.8% of agreements were approved within 8 weeks and 98.4% within 12 weeks.
The timelines for other key matters were:
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Reserved decisions : 83.9% within 8 weeks and 93.4% within 12 weeks
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Appeals(lodgement to hearing): 94.6% within 8 weeks and 100% within 16 weeks
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Appeals (reserved decisions): 88% within 8 weeks and 97.2% within 12 weeks
These turnaround times are remarkably good given the volume of matters the members and staff of the FW Commission must contend with.
Beyond looking at those raw numbers, it is important to appreciate that the FW Commission conducts a range of research functions, public and stakeholder engagement projects which facilitate evidence based innovation, cooperative and productive workplace relations. This wider role should be recognised as a critical component in the measurement of the performance of the institutions regulating our industrial relations system.
Further, the FW Commission has instituted a change program, Future Directions, in an effort to respond appropriately to ‘constantly changing social and industrial environments’. In particular, the FW Commission has identified changes in the nature of its work- from dealing with predominantly collective disputes between represented parties to an increasing number of self-represented applicants pursuing individual rights based disputes- as a critical area.
The program includes a range of initiatives grouped under the four key themes of:
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Promoting fairness and improving access;
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Efficiency and innovation;
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Increasing accountability; and
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Productivity and engaging with industry
Of relevance to this Review, in 2015-16 the FW Commission intends to evaluate its performance against the International Framework for Tribunal Excellence744.
State interference
We note that the PC has identified s. 569 of the FW Act as controversial section. We regard it as both controversial and unnecessary to provide intervention as of right to the Minister or any other State agency in industrial relations proceedings. The courts, through rules of procedure and the common law, have developed thorough tests to determine on a discretionary basis when a non-party to a proceeding should be heard in a proceeding, and, if so, what role they should play therein745. Similarly, the FW Commission has broad powers to inform itself in any way it sees fit, which have been applied to determine whether it is appropriate for particular parties to be heard.746 These rules are sufficient and fair.
Beyond section 569 of the FW Act, there are other provisions which give rights to a Minister or a regulatory authority which bypass the discretionary considerations otherwise applicable. These include:
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Section 71 of the FWBI Act, which gives the Director of the Fair Work Building Inspectorate the power to intervene in court proceedings as of right;
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Section 72 of the FWBI Act, which gives the Director of the Fair Work Building Inspectorate the power to make submissions in the FW Commission as of right
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Section 569A of the FW Act, which gives the Industrial Relations Minister of a State or Territory the power to intervene in court proceedings as of right
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Section 351A of the RO Act, which gives the Minister the power to intervene in court proceedings as of right.
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Section 310 of the RO Act, which gives the Minister (rather than the inspectorate) the exclusive public right to prosecute union officials and employees of unions for non compliance with orders or directions of the Federal Court or the FW Commission.
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Sections 28 and 30 of the RO Act, which gives the Minister the power to apply to the Federal Court or the FW Commission to cancel a union’s registration under that Act;
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Sections 133 and 137A of the RO Act, which give the Minister the power to seek demarcation orders from the FW Commission (i.e. orders that prevent a union from representing particular workers that its constitution otherwise permits them to represent);
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Section 605 of the FW Act, which gives the Minister the right to seek a review of a decision of the FW Commission, in the absence of any party to the matter appealing against it.
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Section 247 of the FW Act, which gives the Minister the exclusive right to prevent workers, in all multi employer bargaining contexts save for those involving franchises, joint ventures or related companies, from accessing protected industrial action at any stage during their bargaining.
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Section 431 of the FW Act, which gives the Minister the power to terminate protected industrial action;
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Section 433 of the FW Act, which gives the Minister the exclusive power (after a direction under section 431 has been made) to direct that parties to bargaining disputes engage in or cease engaging in any conduct.
Each of the powers above involve unwarranted state interference in industrial relationships, and should be repealed.
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