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The Birth of a New System: Challenges and Opportunities

The Birth of a New System: Challenges and Opportunities. Professor Andrew Stewart University of Adelaide & Piper Alderman 2009 Patron’s Dinner IR Society of WA, Perth, 1 July 2009. A challenge met. Fair Work legislation completed in time to start today … just! Fair Work Act 2009

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The Birth of a New System: Challenges and Opportunities

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  1. The Birth of a New System:Challenges and Opportunities Professor Andrew Stewart University of Adelaide & Piper Alderman 2009 Patron’s Dinner IR Society of WA, Perth, 1 July 2009

  2. A challenge met • Fair Work legislation completed in time to start today … just! • Fair Work Act 2009 • Fair Work Regulations 2009 • Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (+ Regs) • Fair Work (State Referral and Consequential and Other Amendments) Act 2009 (+ Regs) • Small Business Fair Dismissal Code

  3. Information on the new system • Fair Work Online • www.fairwork.gov.au • www.fwa.gov.au • www.fwo.gov.au

  4. Main features • New agencies, Fair Work Australia (FWA) and Fair Work Ombudsman (FWO) • replacing Australian Industrial Relations Commission (AIRC) and other agencies • A new ‘safety net’ of minimum conditions • National Employment Standards (NES) for all employees covered by federal system • standardised and simplified ‘modern awards’ for most such employees

  5. Main features • New system of enterprise agreements • collective agreements only • but not necessarily with unions • options for ‘individual flexibility arrangements’, and high-earners can contract out of awards • single- or multi-enterprise • good faith bargaining • better off overall test

  6. Main features • Retains restrictions on industrial action • Broader access to unfair dismissal claims • subject to qualifying period of 6 months (or 12 months for small business) • high earning non-award employees still excluded • New ‘general protections’ against discriminatory/wrongful treatment at work

  7. Main features • Slightly broader rights of entry for union officials • New rules on retention of entitlements when transferring employment • Greater powers of dispute resolution for FWA

  8. Challenges to come • Creating the promised ‘national system’ • Completing award modernisation • Making the unfair dismissal system work as promised • Approving enterprise agreements in 7 days • Getting the BCII Amendment (Transition to Fair Work) Bill 2009 through the Senate

  9. Opportunities • For bargaining participants – testing out the new good faith bargaining rules • For anyone wanting advice about allowable content for agreements – getting (a) a straight answer, (b) the same answer twice • For lawyers and other advocates – rebuilding an unfair dismissal practice … if FWA allows • An end to constant change?

  10. Towards a national system • Fair Work Act will cover • trading, financial and foreign corporations • Commonwealth agencies • all other Territory employers • all other employers in ‘referral States’ • Commonwealth seeking referrals of power for rest of the private sector • participating States can decide whether to keep their own systems for public sector and local government

  11. Referrals – the state of play • Victoria – new referral legislation already passed, will remain fully in federal system • SA, Tasmania – also to refer as from January 2010, but not for public sector • Qld – in principle agreement to refer • WA – will not refer • NSW – still to decide

  12. Award modernisation • A challenging and time consuming process • The inevitable problems (and complaints) when standardising and simplifying • Government intervention – help or hindrance? • The vital issue of transitional provisions

  13. Unfair dismissals • The shift in the Act from the vision of the single, lawyer-less conference • But still an expectation of a system that operates more quickly, more cheaply and more informally than the previous regime • A hint – the hiring of specialist conciliators • How the new system might work

  14. Enterprise agreement approval • The goal of a 7-day turnaround • Hearings as an exception, not the rule • Easier for FWA than the Workplace Authority • But some major challenges

  15. Other questions for FWA • Low-paid bargaining • Modernising enterprise awards • Resolving disputes over the NES • Award test cases between scheduled reviews?

  16. A lasting system? • 20 years of almost constant change … is it about to end? • Seizing the ‘Higgins moment’ to establish a system that is sufficiently robust to last for years, not months • Labor’s pragmatic choices and emphasis on ‘balance’ may be a key to delivering stability • … and so may the next Senate

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