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Round-up of Fair Work Act review submissions


With submissions now closed to the Fair Work Act review, AREEA brings you recommendations from some of the industry’s key players.

The AREEA submission

AREEA’s 178-page submission to the review made a series of 54 recommendations for legislative change, including:

  • A statutory individual contract measured against the Better Off Overall Test and the National Employment Standards should be introduced to facilitate workplace flexibility;
  • Fair Work Australia should have the power to make a greenfield determination for a new project where agreement on reasonable terms within a reasonable timeframe cannot be reached with a union;
  • Individual Flexibility Arrangements (IFAs) should be able to operate for up to four years, with the arrangements able to run for shorter periods where mutually agreement and be terminated at any time by mutual agreement;
  • Protected industrial action should not be permitted where the claims being sought do not meet a ‘public interest test’ applied by Fair Work Australia;
  • Workplaces should have the option of voting for an ‘internal regulation’ model of industrial relations if a two-thirds majority of the workforce endorses it;
  • The majority support of all employees, not just union members, should be required before any employees can take protected industrial action; and
  • Protected industrial action should not be available to employees before bargaining has commenced or a majority support determination has been made by Fair Work Australia.

For AREEA’s full submission and recommendations, click here

For a summary of AREEA’s submission, click here.

Submission by Anthony Forsyth and Andrew Stewart

IR academics Anthony Forsyth (association professor and director, workplace and corporate law research group, Faculty of Business and Economics at Monash University) and Andrew Stewart (John Bray professor of law at the University of Adelaide and consultant for Piper Alderman) made a 37-page submission to the review, with key recommendations including to:

  •  Amend s.55 of the Fair Work Act to make it clear that awards and enterprise agreements may define who is a ‘casual’ for the purposes of the National Employment Standards (NES);
  •  Introduce a ‘bargaining code’ such as the one that currently operates in New Zealand;
  • Require Fair Work Australia to refuse to approve an enterprise agreement where the parties have not been bargaining in good faith;
  • Make bargaining in good faith a pre-requisite to taking protected industrial action;
  • Require employers to give three clear working days’ notice of employer response action/lockouts;
  • Repeal the ministerial power to end industrial action;
  • Adjust the tests for accessing arbitration to include where parties have negotiated in good faith but still cannot reach agreement;
  • Amend the unfair dismissal jurisdiction by making it a costs jurisdiction; increasing compensation for successful applicants; and requiring Fair Work Australia to make more of an effort to filter out unmeritorious claims; and
  • Amend the time limit for lodging dismissal-related adverse action claims and unfair dismissal claims to 21 days (currently the time limits are 60 days and 14 days respectively).

For the full Forsyth/Stewart submission, click here.

The Rio Tinto submission

Rio Tinto made a 25-page submission to the review, arguing that:

  • Employees should have to actively appoint a bargaining representative rather than unions being the default bargaining representative (consistent with AREEA’s submission);
  • Bargaining representatives should have to provide evidence to Fair Work Australia about the number of employees they represent in bargaining without revealing their identities;
  • Formal secret ballots should have to be conducted by employers or independent third parties to prove majority support for bargaining (consistent with AREEA’s submission);
  • Protected industrial action should not be available if the employer has refused to bargain and a majority support determination has not been issued (consistent with AREEA’s submission);
  • Employers should be able to offer prospective employees employment on an IFA (consistent with AREEA’s submission);
  • Union officials should have to prove the employer’s designated meeting space is not reasonable;
  • The reverse onus of proof for adverse action applications should be removed;
  • Employers’ honest testimony about their reasons for taking adverse action should be enough to satisfy the courts; and
  • Where safety breaches are involved, if there is a valid reason for termination of employment, then that should be given more weight by Fair Work Australia than other factors.

For the full Rio Tinto submission, click here.

The Business Council of Australia submission

The Business Council of Australia (BCA) made a 101-page submission to the review, arguing in favour of:

  • More ‘robust’ bases for establishing majority support for bargaining (consistent with AREEA’s submission);
  • Majority support for bargaining being retested during protracted negotiations;
  • The range of matters on which bargaining can occur being reduced, specifically those placing restrictions on the use contractors;
  • The model flexibility clause being mandated for inclusion in enterprise agreements (consistent with AREEA’s submission);
  • Majority support determinations being required before protected industrial action can be taken in situations where bargaining has not yet commenced (consistent with AREEA’s submission); 
  • Expanding Fair Work Australia’s capacity to suspend action for the purposes of ‘cooling off’ (consistent with AREEA’s submission);
  • Creating more employment options such as employer-only greenfield agreements (consistent with AREEA’s submission);
  • Requiring the good faith bargaining principles to apply to greenfield project negotiations (consistent with AREEA’s submission).
  • Reducing the scope of the general protections to align with other anti-discrimination legislation; and
  • Reintroducing the ‘sole and dominant’ reason test for adverse action claims (consistent with AREEA’s submission).

For the full BCA submission, click here.

The BHP Billiton submission

BHP Billiton made a 24-page submission to the review, arguing that:

  • More attention needs to be given to what are permitted and what are non-permitted matters in enterprise bargaining;
  • More attention needs to be given to the status of provisions in enterprise agreements that impinge on managerial decision making even after the expiry of such agreements.
  • The ‘permitted matters’ in s.172 and the ‘unlawful terms’ in s.194 of the Act should be adjusted so that only matters pertaining to the employment relationship can be included in enterprise agreements (this should exclude items that pertain to the relationship between an employer and a union or between an employee and a union);
  • Non permitted matters in enterprise agreements should include terms relating to:

          – The use of contractors;
          – Demarcations; Preference for unionists;
          – Mandatory renegotiation of agreements;
          – Bargaining fees; and
          – Strike pay.

  • The matters listed in the model flexibility term should be ‘unequivocally’ included in enterprise agreements in terms of available flexibility (consistent with AREEA’s submission);
  • Employers should have timely recourse to Fair Work Australia to seek greenfield agreements by limited arbitration where conscientious employer efforts to achieve an agreement have not succeeded (consistent with AREEA’s submission);
  • Statutory individual contracts should be able to cover high income earners (consistent with AREEA’s submission);
  • Representation in bargaining should be based on an ‘active’ decision by employees (consistent with AREEA’s submission);
  • Unions should only be able to act as bargaining representatives for workers covered by their eligibility rules (consistent with AREEA’s submission);
  • Greater ‘rigour’ should be introduced in relation to determining majority support for bargaining (consistent with AREEA’s submission); 
  • Significant efforts at bargaining should have to be made before protected industrial action is available (consistent with AREEA’s submission);
  • Sections 413 and 443 should be amended to clarify that protected action ballot orders are only available where an employer has agreed to bargain or a majority support determination has been issued and Fair Work Australia is satisfied the applicant is bargaining in good faith (consistent with AREEA’s submission); and
  • Unions that engage in the tactic of notifying protected industrial action and then do not take it on short or no notice should be disqualified from taking any form of industrial action for 60 to 90 days (consistent with AREEA’s submission advocating a 90-day suspension.

For the full BHP Billiton submission, click here.

The ACTU submission

The Australian Council of Trade Unions (ACTU) made a 71-page submission to the review, arguing that:

  • Access to multi-employer bargaining should be allowed based on a simple ‘public interest’ test;
  • Agreements should be able to be made on all matters affecting employees’ working lives, including job security and social and economic matters that have a direct impact on workers;
  • Agreements should be able to improve on statutory right of entry and unfair dismissal provisions;
  • Flexibility clauses should not be mandatory in enterprise agreements;
  • Employers should be required to give three days’ notice of a lockout of employees (consistent with the Forsyth/Stewart submission);
  • It should be clarified that the use of replacement labour during a bargaining dispute constitutes bad faith conduct;
  • Workers should be able to terminate an agreement by majority and initiate bargaining for a new agreement where the number and identity of workers covered by the agreement has changed significantly from the time when the agreement was made;
  • Arbitration should be allowed as the final stage of dispute resolution where a dispute cannot be resolved through discussion, conciliation or mediation;
  • Where unprotected industrial action occurs, employers should have to obtain a stop order from Fair Work Australia before seeking injunctions from the courts;
  • There should be a code for the status and minimum rights of workplace representatives, i.e. a delegates’ rights code;
  • The right to request flexible working arrangements should extent to parents of adult children with a disability, workers aged over 55 and all carers;
  • The location of discussions with workers onsite needs to give workers the opportunity to meet with their union and should be where the workers are located; and
  • Individual Flexibility Arrangements (IFAs) should be required to be lodged with Fair Work Australia and made public.

For the full ACTU submission, click here.

To view all submissions to the Fair Work Act review, click here.

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