Submission 167 Australian Council of Trade Unions Workplace Relations Framework Public inquiry
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| Fair Work Bill 2008 Explanatory Memorandum at paragraphs 436 to 439.
331 Applies only to the ACT. 332 Applies in NSW, QLD and ACT. 333 Markey, et al (2013) at p.23. 334 Markey, et al (2013) at p.10. 335 Whilst it would be possible for the Commonwealth to directly legislate in respect of these employees to replicate under the FW Act, the various entitlements contained in State legislation, this would appear to be an unnecessarily complex approach to dealing with the preservation of these entitlements. 336 New South Wales v Commonwealth (“the Work Choices Case”) [2006] HCA 52; 81 ALJR 34; 231 ALR 1 (14 November 2006). 337 We also operate on the assumption that it would not be appropriate (and that there is not intention) to legislatively change the status-quo as to the current interaction of the coal mining industry scheme and the NES. Section 39E of the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) excludes the operation of the NES in respect to the matters dealt with in the Act. 338 FW Act ss90(1) and 90(2). 339 Markey et al (2013), at p.14 340 Markey et al (2013) at pp 15-16. 341 Ibid at p.17. 342 See Print F6230 and s 119 of the Act 343 Construction, Forestry, Mining and Energy Union (CFMEU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Spotless Facility Services Pty Ltd T/A Spotless [2015] FWCFB 1162 at [66]. 344 Print F6230; (1984) 294 CAR 175 345 “long-term unemployment in Australia reached an unprecedented peak of 366,000 persons in March 1993, representing 38% of the unemployed and 4% of the labour force. The previous peak of 231,000 persons (31% of total unemployment) occurred in February 1984.” Australian Bureau of Statistics, 4102.0 - Australian Social Trends, 1994 346 Transport Ind Mixed Enterprises Redund (State) Award [1994] NSWIRComm 75 (24 June 1994) 347 Transport Ind Mixed Enterprises Redund (State) Award [1994] NSWIRComm 75 (24 June 1994) 348 Print F7262, Termination, Change and Redundancy Case - Supplementary Decision, Print F7262, Moore J, Maddern J and Brown C, 14 December 1984. 349 See for example: Kilsby v MSS Security Pty Ltd T/A MSS Security [2014] FWC 7475 350 See for example: Kilsby v MSS Security Pty Ltd T/A MSS Security [2014] FWC 7475 351 For example the right to request flexible working arrangements (s 65(2)), unpaid parental leave (s 67(2)) and access to relief from unfair dismissal (s 384(2)). 352 FBIS International Protective Services (Aust) Pty Ltd v Fair Work Commission and Anor (VID691/2014) 353 See for example Datacom Systems Vic Pty Ltd v Khan and another [2013] FWC 1327 354 See for example Vicstaff Pty Ltd v May [2010] FWA 3141, Central Norseman Gold Corporation Ltd v Kempton [2010] FWA5316, UXC Connect v Moore [2012] FWA 4296. 355 Fair Work Act (2009), s. 3(b),(e). 356 The FWC power to make such orders is available under the corporations power in the Constitution, as the orders are directed at avoiding disputes affecting companies and their workforce. 357 See WR Act s. 170LV, FW Act s. 190. 358 Award Simplificiation Decision Dec1533/97 and Print 7500, December 1997 where the AIRC (the removable of non-allowable content) 359 released November 2012, Fair Work Australia. 360 These included: penalty rates including working on public holidays and weekends; shift and overtime loadings; monetary allowances; annual leave loadings; public holidays; rest breaks; incentive-based payments; and bonuses. 361 Workplace Relations Amendment (A Stronger Safety Net) Act 2007, Schedule 1. 362 See section 323 of the Fair Work Act 363 See section 324 of the Fair Work Act. 364 Section 171 of the Fair Work Act. 365 FWF, 14. 366 DEEWR submission to the FW Bill inquiry, pp. 25–26. 367 Future Directions 2014–15: Initiative 29: Productivity and innovation in enterprise agreement clauses: an overview of literature, data and case studies at the workplace level (December 2014) 368 See, for example, clause 8 of the Miscellaneous Award. 369 ILO, Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, 5th ed, 2006 at [1005] 370 ILO, Direct Request of the Committee of Experts on the Application of Standards and Recommendations, adopted 2013, published 103rd ILO session (2014). 371 (1994) 181 CLR 86 at [17] 372 McCrystal, S. “Collective Bargaining beyond the Boundaries of Employment”, Melbourne University Law Review 2014 (37), p662. 373 R v. Commonwealth Industrial Court Judges; Ex parte Cocks (1968) 121 CLR 313 374 [2013] FWC 2671 375 [2009] FCA 231 376 [2001] AIRC 879 377 Wesfarmers Premier Coal v. AMWU [2004[ FCA 1737. 378 FW Act s. 194 379 At section 3. 380 For example, see Ryan v. TCFUA & Anor [1996] 2 VR 235 381 Forsyth, Anthony “The impact of ‘Good Faith’ Obligations on Collective Bargaining Practices and Outcomes in Australia, Canada and the USA” Working Paper No 17 Workplace and Corporate Law Research Group, Monash University June 2010. 382 Bukarica, Alex and Dallas, Andrew. Good Faith Bargaining under the Fair Work Act 2009: Lessons from the Collective Bargaining Experience in Canada and New Zealand, The Federation Press, Sydney 2012. 383 See for example, Kahn-Freud, O. “On Uses and Misuses of Comparative Law” (1974) 37 Modern Law Review 1. 384 Bukarica and Dallas (2012) at pages 385 Bukarica and Dallas (2012) at pages 95-101 386 See in particular, Association of Professional Engineers, Scientists and Managers, Australia, The Collieries’ Staff Division v Endeavour Coal Pty Limited [2012] FWA 13 and Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia [2012] FCA 764 and the very recent FWC Full Bench decision in Association of Professional Engineers, Scientists and Managers, Australia, The Collieries’ Staff Division v Peabody Energy Australia Coal Pty Ltd [2015] FWCFB 1451. 387 Bukarica and Dallas (2012) at p151. 388 Ibid at pp 41- 47; p 39. 389 Ibid at pp 98-100. 390 Ibid at 391 “Give tribunal power to address surface bargaining: Noonan” Workplace Express 19 November 2012 392 FW Act s. 228 (1)(b) 393 Corporation Act s. 677 394 The Cochlear Limited Enterprise Partnership Agreement 2005 registered under the Industrial Relations Act 1996 (NSW). 395 See paragraphs 110 and 128 of Explanatory Memorandum to the Fair Work Bill 2009. 396 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Cochlear Limited - re Bargaining - majority support determination [2009] FWA 125 (20 August 2009) 397 "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and another v Cochlear Limited [2012] FWA 5374 (3 August 2012) 398 Workplace Express 11 February 2015 “Manufacturing demarcation heads to Full Bench”. The article says the following about Chris Roberts: “Roberts has been a vocal supporter of the Abbott government's push to change the Fair Work laws, and continues to criticise the former ALP government for, in his words, "re-regulating the labour market". 399 "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) [2013] FWC 9725 (19 December 2013) 400 ResMed Limited [2014] FWCFB 2418 (11 April 2014) 401 "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v ResMed Limited [2014] FWCFB 3501 (17 July 2014) 402 Our present understanding of the state of litigation involving ResMed and the AMWU is as follows. Following the Full Bench decision referred to above, ResMed have applied to the Federal Court for judicial review of the Fair Work Commission decision. The AMWU have also made an interlocutory application in the Federal Court. Neither matter is yet concluded. The AMWU have applied to change their rules to put their coverage beyond doubt at ResMed. In response, ResMed have applied for representational orders to exclude the AMWU from coverage of employees in its workplace. 403 PR999054 404 Association of Professional Engineers, Scientists and Managers, Australia, The Collieries' Staff Division v Endeavour Coal Pty Limited [2012] FWA 13 (4 January 2012) 405 Endeavour Coal Pty Ltd v. Association of Professional Engineers, Scientists and Managers, Australia, The Collieries' Staff Division [2012] FWAFB 1891. 406 Endeavour Coal Pty Limited v. Association of Professional Engineers, Scientists and Managers, Australia [2012] FCA 764. 407 ILO, Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 1A), Geneva, 2012, at p59. 408 McCrystal, Shae, The Right to Strike in Australia, The Federation Press, Sydney, 2010 at pp 277-280. 409 Freedom of Association – Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO, 5th (revised) edition, 2006, at [556]-[559]. 410 Report of the Committee of Experts on the Application of Conventions and Recommendations, International Labor Conference, 101st Session, 2012, Report III (Part IA), pp.59-60. 411 Ibid. 412 The legal concept of “protected industrial action” was first introduced with the Industrial Relations Reform Act 1993 amendments to the Industrial Relations Act 1988 (Cth). 413 See for example the observations in McCallum, R “The Mystique of Secret Ballots: Labour Relations Progress v Industrial Anarchy”’ [1976] 2 Monash University Law Review. 414 Labour Legislation Guidelines, Social Dialogue, Labour Law and Labour Administration Department, International Labour Organisation, Geneva, 2001 at Ch. 5. 415 Procedures, which in theory, are open to ‘non-union’ employees as well as unionists. 416 FW Act, s436 – “Objects of this Division”. 417 FW Act, s 417. 418 For present purposes it is assumed that the bargaining representative is a union, though the FW Act does not confined bargaining representatives to registered unions. 419 FW Act, s 413. 420 FW Act, ss 409(3), (4) and (5). 421 FW Act, ss 437, 443 and 445. 422 FW Act, ss 459(1). 423 FW Act, s 459(1)(d). 424 FW Act, s 459(3). 425 This notice period applies even if the employer’s enterprise is a 24 hour day, seven days a week operation. 426 FW Act, s 414. 427 FW Act, s 409. 428 The ballot order issued by the Fair Work Commission required an extended notice period of 7 calendar days, over the statutory default minima of 3 working days. 429 91 IR 198 430 PR534233 431 [2013] FWC 1202 432 Fair Work Commission - Transcript 25 February 2013 –C2013/3258 Appeal by EnergyAustralia Yallourn Pty Ltd 433 [2013] FWCFB 3793 434 EnergyAustralia v CFMEU [2013] VSC 105 435 [2013] FWC 2748 - s437 application by the CFMEU 436 [2013] FWCA 9364 437 The Coalition’s Policy to Improve the Fair Work Laws, Liberal Party, May 2013, at p 34 438 [2009] FWAFB 368. This was an appeal decision which considered, among other matters, whether a union was “genuinely trying to reach agreement”. 439 s. 171 440 See for example the discussion in Corporation of the City of Enfield v. Development Assessment Commission [2000] HCA 5 and NAAV v. Minister for Immigration [2002] FCAFC 228. 441 See generally Division 9 of Part 2-4. 442 WorkChoices s.444, WR Act s. 170MP, IR Act s. 170PI. 443 Forsyth, Anthony “Why Australian needs interest arbitration” Workplace Law and Corporate Law Research Group, Monash University. 444 In particular, see below our discussion of s423 of the FW Act. 445 Article 3 of C087 446 Article 4 of C098 447 FW Act s266(1) 448 FW Act s266(3) 449 FW Act s279. 450 FW Act s424(1)(d) 451 Gosternick, V. and Tuck, J. “Six key lessons for employers from the Qantas dispute” Corrs in Brief 4 November 2011 available at www.corrs.com.au/publications/corrs-in-brief. 452 Minister for Tertiary Education, Skills, Jobs and Workplace Relations (‘the Qantas Case’) [2011] FWAFB 7444 at pars 7 – 11. 453 FW Act s423(2) 454 FW Act s424(1)(c) 455 FW Act s424(1)(c) 456 [2009] FWA 44 457 Ibid at par 10 458 [2011] FWAFB 8165 at paragraph [57]. 459 Nolan, J, “The implications of the Qantas dispute: the future for employer and employee protected industrial action – speedier resort to arbitrated disputes?” Presentation to the Third Annual Labour Law Conference held by Union Lawyers and Industrial Officers, New South Wales, Sydney 23 February 2012. 460 FW Act s423(2) 461 FW Act s423(5) 462 FW Act s423(6) 463 Schweppes Australia Pty Ltd v United Voice - Victorian Branch (No.1) [2011] FWA 9329, at par [57] 464 Ibid, at par [76]. 465 Fair Work Australia, matter no. B2012/461, transcript of proceedings, 10 February 2012 at PN507. 466 Ibid, at PN 530. 467 Schweppes at paragraph [73]. 468 Ibid, paragraph [48]. 469 See FW Act s. 269, , 234, 235. 470 See for example, Lansbury, Russell “Back to the future with arbitration?” University of Sydney Business School, 24 November 2011. 471 s240 of the FW Act prevents the Fair Work Commission from acting on its own volition in relation to bargaining disputes. This could be fixed by a relatively simple legislative amendment. 472 FW Act s. 595(2) 473 Report of the Fair Work Act Review Panel, “Towards more productive and equitable workplaces: An evaluation of the Fair Work Legislation”, 2012, p 172 474 Ibid., p 172 475 Ibid., p 172 476 Ibid., p 173 477 At p 171 478 Explanatory Memorandum, p xiv 479 Explanatory Memorandum, p xii 480 Explanatory Memorandum, p xvii 481 Explanatory Memorandum, p ix 482 BHP Billiton (24-2-2015) “Results For Announcement to the Market” http://www.bhpbilliton.com/home/investors/news/Documents/2015/150224_BHPBillitonInterimResultsfortheHalfYearEnded31December2014.pdf 483 Chevron (30 January 2015) Chevron Reports Fourth Quarter Net Income of $3.5 Billion and 2014 Earnings of $19.2 Billion at http://investor.chevron.com/phoenix.zhtml?c=130102&p=irol-news&nyo=0 484 MUA Submission (23-2-2015) Senate Education and Employment Legislation Committee Inquiry into the Fair Work Amendment (Bargaining Processes) Bill 2014 at: http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Education_and_Employment/fairwork/Submissions 485 Maritime Union of Australia, Supplementary Submission to Senate Education and Employment References Committee Inquiry into the Fair Work Amendment Bill, 8/5/2014. 486 Issues Paper 3: Bargaining 487 IWages Policy in an Era of Deepening Wage Inequality; Ibid, p.10 488 Ibid; p.3 489 See ss.172(3) and 242-265 of the Fair Work Act 2009 490 FW Act s. 247 491 AIRC (2000). Australian Industry Group and Automotive Food, Metals, Engineering, Printing and Kindred Industries Union, Print T1982, October 16. 492 The restructuring of the Metal Industry 1984 was undertaken jointly with industry employers and Unions to catapult, in the workplace context , skills acquisition into the place previously occupied by a narrow trask based approach. 493 Public Service Act 1999 (Cth), s6(1) 494 Ibid, section 13 495 Ibid, section 10 496 Ibid, section3(a) 497 Public Service Regulations 1999 (Cth), Division 5.2 498 Ibid, Division 5.3 499 National Commission of Audit, Towards Responsible Government, The Report of the National Commission of Audit –Phase Two, Canberra, Commonwealth of Australia, March 2014, p.xxi 500 See s268(1) but note well that no serious breach order has been granted since the Fair Work Act came into operation 501 A capacity for a public sector specific right of arbitration could be founded on the implementation of the Labour Relations (Public Service Convention) see below 502 See s170MW (7) and s. 170MX of the Industrial Relations Act 1988 as amended by the 1993 Reform Act 1993. 503 United Firefighters’ Union of Australia v. Country Fire Authority [2015] FCAFC 1, para 207 page 62 from hereon referred to as the UFU Appeal 504 UFU appeal:, para 207 page 62 from hereon referred to as the UFU Appeal 505 New South Wales v. Commonwealth 156 IR 1 506 Ibid 507 E.g.; AWU v. Etheridge Shire Council (2008) 171 FCR 102, Shire of Ravensthorpe v. Galea [2009] WAIRC 01149 (2 November 2009), Auswest Timbers Pty Ltd v. DSE (2010) 241 FLR 360, 508 (2009) 178 FCR 252. 509 See ibid 337–8 [70]–[72] 510 ibid 338 [74]. 511 Page 9 paragraph 1 512 Australian Bureau of Statistics, 2010, ‘Productivity’, Measures of Australia’s Progress, cat. no. 1370.0, viewed 25 February 2015. http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/1370.0~2010~Chapter~Productivity%20and%20progress%20%285.5.1%29 513 Atkinson T (2005) Atkinson Review: Final Report: Measurement of government output and productivity for the National Accounts (2005, Palgrave MacMillan, Basingstoke) 514 Commonwealth of Australia, Department of Finance and Deregulation, (2011) ‘Review of the Measures of Agency Efficiency report’, p 18. 515 Hetherington D (2013) ‘Social innovation, public good: new approaches to public sector productivity’ (Per Capita Research Paper, Per Capita Australia Ltd). 516 Ibid. 6. 517 Dr. Samantha Farmakis-Gamboni and Kelvin Yeun, `an overview of Productivity, business competitiveness and viability’ Fair Work Australia (2011) Research Report 1/2011 Melbourne Australia. 518 Ibid at p 145 519 Commonwealth House of Representatives, Standing Committee on Economics (2010), ‘Inquiry into raising the productivity growth rate in the Australian economy’ http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=economics/productivity/report.htm 520 ibid. p. 141 521 Ibid., p. 142. 522 Ibid. 523 Christopher Stone (2014) ‘False Economies: Unpacking public service efficiency’ (Centre for Policy Development). Cpd.org.au/2014/06/False-economies 524 Christopher Stone (2014) ‘False Economies: Unpacking public service efficiency’ (Centre for Policy Development). Cpd.org.au/2014/06/False-economies p. 51. 525 Hancock, Healy, Mavromaras, Sloane and Wei, National Institute of Labour Studies Brief Report to the CPSU (2011) Public Sector Pay and productivity, (2011, Flinders University, Adelaide). 526 The Public Service Association and Professional Officers’ Association Amalgamated of NSW v Director of Public Employment & Ors [2012] HCA 58 527 Insert links to decisions 528 http://www.comlaw.gov.au/Details/C2012A00022 529 Excess Employee policy 530 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Director of Public Employment [2011] NSWIRComm 152 531 The CPSU, ACTU and PSANSW has filed a Complaint to the Freedom of Association Committee of the International Labour Organisation complaining that the legislation discussed here offends ILO conventions 532 Emwest Products Pty Ltd v. AMWU [2002] FCA 61. 533 Ibid. at [55] 534 WR Act s. 170LW 535 See House of Representatives (Cth), Fair Work Bill 2008 Explanatory Memorandum [783]. 536 FW Act s186(6) 537 Information provided to ACTU by DEEWR 538 [2010] FWAFB 1464 539 FW Act s539 540 FW Act – Part 2-4 generally; FW Act s417 541 For example, the enterprise agreements binding the subsidiaries of multinational mining giants Glencore PLC and Rio Tinto Ltd and its employees almost without exception preclude arbitration as a final step in the disputes procedure, except with the explicit consent of the employer – which is always refused. 542 Bukarica and Dallas (2012) at p45 543 FW Act s. 205. 544 MFESB v. UFU [2005] AIRC 205. 545 See FW Act s. 342 546 CBA v. Barker [2014] HCA 32 547 Ibid. at [36]. 548 At [19]-[20] 549 At [118] 550 At [35] 551 At [39]-[41] 552 FW Act s. 143(7). 553 At clause 4.2 554 FW Act s. 47(2) 555 FW Act s. 329-330. 556 Workplace Relations Act 1996, section 400(6). 557 WR Act, s 450; s 495. 467 558 Ibid, s399 559 Lodgement Data cited in the Report of the Fair Work Act Review Panel, “Towards more productive and equitable workplaces: An evaluation of the Fair Work legislation”, 2012, p 119. 560 Workplace Authority, ‘Lodgement Data: 27 March 2006–30 September 2007’ (2007) p 5. 561 ABS data (6306-May 2012) indicates that 63.9% of award dependent employees are engaged in the accommodation and food services, retail trade, Health care and social assistance and administrative and support services industries. 562 Report of the Fair Work Act Review Panel, “Towards more productive and equitable workplaces: An evaluation of the Fair Work legislation”, 2012, p 119. 563 The Hon Julia Gillard MP, AWA Data the Liberals claimed never existed, media release, 20 February 2008. Note that the media release relied upon Office of the Employment Advocate data examined between April and October 2006. 564 David Peetz and Alison Preston, ‘AWAs, Collective Agreements and Earnings: Beneath the Aggregate Data’ (2007) p 4. 565 ABS cat 6306.0 (May 2006) p 33. 566 ABS cat 6306.0 (May 2006) Table 10. 567 David Peetz, Submission to the Senate Inquiry into the Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008, (2008), p 64. 568 Peetz and Preston, p 13. 569 David Peetz, Submission to the Senate Inquiry into the Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008, (2008), p 67. 570 Ibid, p 29. 571 Ibid, p 67. 572 P Ross and G Bamber, “Strategic Choices in Pluralist and Unitarist Employment Relations Regimes: A Study of Australian Telecommunications”, Industrial and Labor Relations Review, Vol. 63, No. 1 (October 2009). 573 s144(4)(b), 203(3). 574 s144(4)(c), 203(4). 575 s144(4)(d), Modern award clause 7.2. 576 s144(4)(e), 203(7). 577 s144(4)(d), 203(6). 578 Modern award clause 7.2. 579 203(2)(a). 580 203(4),203(5). 581 Award Flexibility Decision, [2013] FWCFB 2170. 582 Ibid, [171]. 583 General Manager’s Report into the extent to which individual flexibility arrangements are agreed to and the content of those arrangements: 2009-2012, (2012). 584 Table 4.2. 585 Figure 4.1, Table 4.1. 586 Table 4.4, Table 4.7 587 Table 4.3, Table 4.6. 588 Table 4.6. 589 Table 4.6. 590 Table 4.3. 591 Table 5.5, Table 5.7. 592 p 71. 593 p8. 594 These observations are based on an analysis of IFAs compiled by United Voice. 595 Fair Work Ombudsman, ‘Qld - Pharmacy Industry Audit Program Report 2011’, (2012) 11. 596 [2011] FCA 1064. 597 Arkwood Organic Recycling Pty LTd T/A Arkwood Organic Recycling v Transport Workers Union of Australia, Union of Employees [2012] FWA 8916. 598 [2013] FWCFB 2170 [136] 599 FWO, Best Practice Guide: Use of individual flexibility arrangements, available at http://www.fairwork.gov.au/about-us/policies-and-guides/best-practice-guides/use-of-individual-flexibility-arrangements. 600 S145(2)(3) 601 See Part 401 of the FW Act. 602 Skinner N, Hutchinson C, Pocock B (2012), The Big Squeeze: Work, home and care in 2012, AWALI (2012), Center for work and life, University of South Australia. 603 Ai Group, pp. 17, 68; AMMA, p. 10; AHA, 4.13.1; BCA, p. 48; CCIWA, pp. 14, 63; CAI, pp. 9–10; NFF, p. 30; PIAA, p. 5; Rio, p. 15; VECCI supplementary, p. 18. 604 MPMCANSW, point 7; NFF, p. 30; VECCI supplementary, p. 18; Ai Group, pp. 17, 68. 605 AHA, p. 28; BIG, pp. 7, 31–34; CCIWA, pp. 14, 64; MBA, pp. 68–70. 606 CCIWA, pp. 13, 63. 607 AHA, 4.13.1. See also BHP, p. 5; CAI, pp.10–11; NFF, p. 30; WA Govt, p.7. 608 ACCI, p. 12. 609 CAI, pp. 5–6; MPMCANSW, point 7. 610 NRA, p. 7; NFF, p. 30; PIA, p. 5. 611 [2008] AIRCFB 550 612 [2013]FWCFB 2170 613 Ibid, [141]. 614 Buchanan J, Bretherton T, Frino B, Jakubauskas M, Schutz J, Verma G and Yu S (2013) Minimum wages and their role in the process and incentives to bargain, Research Report 7/2013, Fair Work Commission, December, Melbourne, 615 Riley, Joellen Termination of Employment Digest – Country Profile – Australia International Labour Organisation 2006. 616 [1996] 187 CLR 416 617 Explanatory Memorandum - Fair Work Bill 2009 paragraph 5. 618 Ibid paragraph 13. 619 Ibid paragraph 197 onward. 620 See for example, Pope John Paul II on the occasion on the 90th Anniversary of the papal encyclical Rerum Novarum – “Laborem Exercens” 15 May 1980. 621 Australian Bureau of Statistics: 4102.0 - Australian Social Trends, Sep 2011 - Long Term Unemployment http://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4102.0Main+Features20Sep+2011#HEALTH 622 Fair Work Bill 2008 Explanatory Memorandum (‘EM’) at paragraph 1555. 623 Fair Work Commission website - Arbitrated outcomes https://www.fwc.gov.au/resolving-issues-disputes-and-dismissals/dismissal-termination-redundancy/results-outcomes 624 See for example, Johnson v Blue Circle Southern Cement [2010] FWA 5149 at paragraphs [45] to [48]. 625 Stewart, Andrew, Stewart’s Guide to Employment Law Fourth Edition, The Federation Press 2013 at page 353. 626 Fair Work Commission Annual Report at page 43. 627 Ibid at page 40. 628 Ibid at page 43. 629 Ibid. 630 For example, the CFMEU Mining and Energy Division database of UD cases run to arbitration since the FW Act came into effect shows an average of 10 months from lodgement until final decision. In one case, Fitzpatrick v Mt Arthur Coal (U2013/2954) it has been 18 months since the employee lodged his unfair dismissal application and no decision has yet issued. In another matter, Tate v Premier Coal (U2014/12365) the employee lodged his UD application on 9 September 2014 and has his scheduled hearing date in May 2015 – more than 8 months after lodgment. 631 Which will be clear from the application form. 632 s387 FW Act 633 See for example Byrne v Australian Airlines Ltd and also Australia Meat Holdings Pty Ltd v McLauchlan 634 King v Freshmore (Vic) Pty Ltd, Print S4213 at pn 24 (Ross VP, Williams SDP, Hingley C, 17 March 2000. 635 UES (Int’l) Pty Ltd v Harvey [2012] FWAFB 5241 at [26] – [30], [42] – [48], Ventyx Pty Ltd v Murray [2014] FWCFB 2143 at [98] – [106], [142] – [146]. 636 At [28] – [29], [47] – [48]. 637 A view shared by Associate Professor Andrew Stewart, Ibid (2013) at page 354. 638 Ventyx at par [137]. 639 Ibid at [154]. 640 Fair Work Bill 2008 Explanatory Memorandum, paragraph 1512. 641 Smith v Mareeba RSLA Services Club Inc [2013] FWC 351 (unreported, Spencer C, 15 March 2013) [46]-[47]; Banchit v St Mina’s Global Restaurants Pty Ltd (unreported, AIRC, Harrison C, 14 November 2003) PR940477 [39]. 642 Forsyth, Anthony and Stewart, Andrew Submission to the Fair Work Act Review, 2012 at page 28. 643 FW Act s392(2)(a). 644 Fair Work Commission website - Decisions outcomes https://www.fwc.gov.au/resolving-issues-disputes-and-dismissals/dismissal-termination-redundancy/results-outcomes 645 (1998) 88 IR 21. 646 Australian Council of Trade Unions Submission to the Post Implementation Review of the Fair Work Act 2009, 17 February 2012, Volume 1, page 53. 647 What happens at conciliation? Fair Work Commission website. https://www.fwc.gov.au/at-the-commission/coming-the-commission/what-happens-at-conciliation 648 Ibid, at page 16. 649 Fair Work Commission website - Conciliation Outcomes https://www.fwc.gov.au/resolving-issues-disputes-and-dismissals/dismissal-termination-redundancy/results-outcomes 650 See for example, Livingstones Australia v ICF (Australia) Pty Ltd T/A Frith and Associates [2014] FWCFB 1276. 651 Byrne and another v Australian Airlines Limited, (1995) 185 CLR 410. 652 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371. 653 Sebaeto v Waterloo Car Centre Pty Limited trading as Red Spot Rentals, PR930816, 20 May 2003. 654 Flanagan and Ors v Thales Australia Ltd t/a Thales Australia [2012] FWA 6291, 7 September 2012. 655 OECD Employment Outlook 2013, Protecting jobs, enhancing flexibility: A new look at employment protection legislation page 64. 656 Ibid at page 64. 657 Ibid page 81. 658 Ibid page 83. 659 Ibid page 82. 660 Ibid. 661 The ACTU gratefully acknowledges the assistance of barrister Claire Howell in the preparation of these submissions. 662 FW Act s342(1) Item 1(d) 663 FW Act s341(1)(c) 664 (2012) 248 CLR 500 665 [2014] HCA 41 666 Board of Bendigo Regional Institute of Technology and Further Education v Barclay [2012] 86 ALJR 1044, HCA 32 667 Barclay v the Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14. 668 Namely: encouraging or participating in a lawful activity organised or promoted by an industrial association and representing or advancing the views, claims or interests of an industrial association. 669 FCAFC Barclay at pars [27] – [36] 670 HCA Barclay at [121] 671 (1976) 12 ALR 605 672 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218. 673 Ibid at [28] – [31]. 674 Supra at [36] 675 [2014] HCA 41 at par [19]. 676 Ibid at at [42] – [51]. 677 Ibid at [68] 678 Ibid at [92] 679 (1976) 51 ALJR 235; (1976) 12 ALR 605 680 The purpose of giving effect to relevant international conventions is explicitly referred to in the prefatory words appearing in s659 of the Workplace Relations Act 1996. 681 Fair Work Bill 2008 Explanatory Memorandum at paragraph 1432. 682 Workers Compensation Act 1987 (NSW), Part 8. 683 Workers Compensation and Rehabilitation Act 2003, Chapter 4, Part 6. 684 FW Act, Part 4-2, Divisions 2 & 3. 685 As to the exclusion of national system employees from the unlawful termination provisions see Creighton, Breen and Stewart Andrew Labour Law 5th Edition, Federation Press Sydney at p656. 686 The combined population of New South Wales, Queensland and Victoria represents 76.98% of Australia’s total population. Victoria has referred all of its workplace relations powers to the Commonwealth, making all workers in that State employees of national system employers. 687 [2007] FMCA 4. 688 Ibid at paragraphs 14 – 17. 689 Ibid at paragraphs 23-24. 690 Applicant v Respondent, [2014] PR548852 (21 March 2014); AB2014/1052 FWC 9184 (16 December 2014). 691 The Code has never been adopted and instead provided content for Safe Work Australia Guidance Material, which is unenforceable. See Guide for preventing and responding to workplace bullying. http://www.safeworkaustralia.gov.au/sites/swa/about/publications/pages/guide-workplace-bullying and Dealing with workplace bullying – a workers’ guide http://www.safeworkaustralia.gov.au/sites/swa/about/publications/pages/workers-guide-workplace-bullying 692 The definition of “bullying” is ‘repeated, unreasonable behaviour”, s. 789FD (1). 693 s. 789FF(1) 694 s. 789FD(2) 695 See Applicant v Respondent [2014] FWC 6285 (31 October 2014); Mac v Bank of Qld (and others) [2015] FWC 774 (13 February 2015) and Willis v Gibson: Capital Radiology; Carroll [2015] FWC 1131 (17 February 2015). 696 4 Quarterly Reports, (Jan- Dec 2014), Fair Work Commission. 697 In a speech on bullying and investigations in April 2014, Employment Lawyer Josh Bornstein quoted some media articles predicting that the Fair Work Commission would be swamped by anti-bullying applications, and implying that many of these would be trivial. He noted that the reality had – so far- proven to be far more ‘mundane’; “Bullying & Workplace Investigations: The Case for Reform, Josh Bornstein, Maurice Blackburn Lawyers, NO2 Bullying Conference, Gold Coast 8 April 2014. 698 Ibid. 699 The Commission’s four quarterly reports for 2014 cite 154 applications which were ‘resolved’ during the course of proceedings (22%) however a further 80 were withdrawn after a conference or hearing so it is not possible to reach a conclusive number on how many matters were settled to the satisfaction of the parties. 700 Adapted from Fair Work Commission – Anti-bullying jurisdiction: In the Rail Industry; Presentation to the Union Labour Lawyers and Industrial Officers’ Conference (NSW), Helen Bellette, RTBU, 27 February 2015. |