Submission 167 Australian Council of Trade Unions Workplace Relations Framework Public inquiry

Object 3(b) of the FW Act is to ensure a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the NES, modern awards and national minimum wage orders.³⁵⁵ Object 3 (e) of the FW Act is to provide accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms. The provision of accessible and effective dispute settlement procedures is integral to guaranteeing the safety net. However, the lack of access to an arbitrated, binding decision to settle disputes under the under the current provisions of the FW Act and the modern award framework undermines these objectives.

Disputes about matters arising under an Award or the NES

Until Work Choices, a dispute about award or NES terms of employment could have been conciliated by the FWC (with attendance mandatory) and ultimately arbitrated. Under Work Choices, the FWC could conciliate (without compulsion to attend) but not arbitrate. Workers could not strike in support of their claim. In these circumstances, the employer would almost always prevail.

As part of the award modernisation process in 2008, The FWC was required to make a decision on the appropriate dispute settlement procedures to be included in all modern awards. The FWC faced the challenge of making this decision prior to having full knowledge of the final FW Act. During the award modernisation process, the ACTU and unions argued that this should not prevent the FW Commission from including in the modern award a dispute settlement procedure which clearly provided for the Commission to settle disputes through arbitration as a last resort. The resulting model dispute resolution clause provided that the FWC may conciliate a dispute about a matter arising under the award or NES (with participation compulsory) but cannot arbitrate without the consent of both parties. Given that, under the FW Act, workers cannot take protected industrial action over a dispute about and award or NES matter, the employer is likely to prevail.

If the employer’s action can be characterised as a breach of the award or NES, workers can seek relief in a competent court. However, this is an expensive and time-consuming proposition, so it is rarely taken by workers, particularly those low paid employees who rely on the minimum NES or award terms of employment.

Further, restrictions on parties to access the FWC for assistance to deal with disputes about the reasonableness of an employer’s refusal to a request for flexible work arrangements to extend a period of unpaid parental leave (under ss. 65 and 76 of the NES) hampers the capacity of most employees to resolve these disputes at all.

The effect is that many workers are deterred from, or unable to enforce their NES and award rights.

Accordingly, we submit that the FW Act still does not provide ‘accessible and effective’ dispute resolution options for disputes about matters arising under awards or the NES. Without recourse to arbitration for disputes about all award or NES terms of employment, there is no way of guaranteeing the effective and on-going settlement of disputes about award and NES matters.

The FWA should empower the FWC to arbitrate disputes about any matters arising under awards or the NES, as a last resort.³⁵⁶ If necessary, such orders can lay down rules for the future conduct of the parties (for a nominated time, or indefinitely) in order to avoid further disputation.

How are existing dispute resolution pathways working?

The FWC is an efficient and effective option for resolution of disputes due to the relative inexpensiveness of hearing procedures and the speed at which the tribunal is able to deal with disputes.

Access to courts is often costly and subject to lengthy processes less suited to the speedy resolution of a workplace dispute. In particular, the informality and efficiency of the FWC is generally more conducive to enabling the parties to a dispute to maintain a working relationship post the settlement of a dispute and in particular avoiding similar disputation in the future. This is an important aspect of the objective of the employment law framework in promoting harmonious workplace relations.

Whilst access to other Tribunals may suitable in certain cases, the processes are sometimes quite lengthy and many employer and employee advocates have experience in the FWC as the appropriate Tribunal with specific experience in dealing with workplace matters.

Access to arbitration in the FWC, within a range of mechanisms to assist in the resolution of disputes is in our experience the most accessible, cost efficient and timely way for settling disputes about employment terms and conditions.

Do people know where they can seek assistance?

Union members, and employees working in unionised sectors, are generally well serviced with access to assistance from their union or a number of internet and telephone advice services.

However, with the growth of employment sectors in non or low unionised areas, we expect there is a lack of knowledge from some groups of employees. This gap is currently filled by the FWO which provides a useful role in disseminating information and advice to employees who are not members or do not have access to a union and specific programs, for example the FWC trial program to assist non-represented applicants in unfair dismissal matters.

13	The Safety Net: (5) Flexibility beyond and within.

In the context of a regulatory framework so fundamentally premised on minimum standards as means to a desired regulatory end, demands for greater flexibility must be met with some caution.

Flexibility for business means the absolute discretion to not follow the rules, or the abolition of rules altogether. As pointed out in chapter 4, the flexibility of our labour market was most recently soundly demonstrated during the GFC: the existing rules have plenty of room to move within them. Calls by industry for even further flexibility must surely met with the legitimate question – what rules are left to set aside?