ON behalf of its national membership, AREEA has written to Minister for Employment Michaelia Cash raising serious concerns about the operation of Australia’s workplace relations tribunal and workplace relations laws.

In the detailed correspondence to Minister Cash, AREEA chief executive Steve Knott says the national workplace tribunal, the Fair Work Commission, is ‘failing to support the interests of employers and employees’ and requires an urgent review.

The letter also reiterates the key challenges of resource employers operating under the Fair Work Act 2009, as identified in AREEA’s 2016 pre-election member survey, and urges the minister to pursue an active agenda of workplace relations reform, including acting on recommendations arising from the Productivity Commission’s review in 2015.

Dysfunction in the Fair Work Commission

As reported in today’s The Australian newspaper, AREEA’s letter highlights the need for an independent review of the Fair Work Commission (FWC) as it is highly dysfunctional, not serving users well and appears to be pursuing political agendas as opposed to assisting constructive workplace relations outcomes for employers and employees.

“The FWC is an administrative body, not a court,” Mr Knott writes in the letter.

“There are countless examples of where the FWC is not approving agreements based on technicalities; something the tribunal in the past has attended to in a practical sense to assist enterprise agreement making that has been subject to genuine agreement by employees and employers.

“In the six years of the previous Labor government, division and dysfunction was allowed to fester within the ranks of the FWC and, regrettably, grows more overt and undignified each day.”

AREEA’s concerns about the operation of the FWC, highlighted to Minister Cash, include:

• Entrenched dysfunction that is blurring the line between respectful, constructive, collegiate differences of opinion and outright denigration and hostility.
• The propensity of the FWC’s President to intervene in high profile industrial disputes which many believe is beyond the accepted precepts for the head of an industrial relations tribunal.
• The need for the Coalition Government to urgently redress the imbalance in FWC appointments following the former Labor government’s six year bias towards trade union appointees with little to no business experience.
• Increasing incidences of individual FWC members handing down decisions which directly contradict established Full Bench principles and approaches.
• The growing number of successful appeals against some tribunal members who have a record of handing down contentious decisions, leaving taxpayers to foot the bill.

Listing a number of potential solutions to address the dysfunction in the FWC, Mr Knott urges Minister Cash to first undertake an immediate review of its structure and approach.

“The government should immediately review the structure of the FWC and, if necessary, make new appointments that have substantial business backgrounds, something wantonly absent under the current structure,” he says.

“We also urge the government to conduct a thorough review of FWC decisions and ensure members are aware of the need for consistency; and create an independent appeals tribunal to ensure greater rigour and consistency in FWC decision-making.”

Changes needed to Australia’s workplace relations laws

AREEA’s letter to Minister Cash outlines a range of serious and well-documented problems the Fair Work Act is causing for business and asks when the business community can expect promised changes to Australia’s workplace relations laws.

“There have been very few improvements to our workplace laws since the Fair Work Act took effect in 2009, and in fact we’ve seen further deteriorations during the final months of the former Labor government, and in the Act’s ongoing interpretation by the FWC,” Mr Knott says.

“This is despite two major reviews having reinforced the need for urgent and meaningful change to address very real problems with Australia’s principal workplace relations statute.”

Consistent with AREEA’s ongoing campaign for ‘5 Reforms Over 5 Years’ as developed in 2016 in consultation with our members, the recent letter to Minister Cash highlights particular problems across the below areas and asks the government to consider a range of practical questions around how the laws are operating:

• Unfair dismissal and adverse action laws: (E.g. “Why can’t employers dismiss employees for serious misconduct without fear of them winning their jobs back?”
• Trade union access to business premises: (“Why do trade unions have the right to insist on meeting with workers in potentially dangerous and hard to access locations?”)
• Agreement making: (“Why can a union interfere with the approval of an industrial agreement that has already been made by an employer and their employees?”)
• Strike action: (“Why is it so easy for unions to inflict costly and damaging strike action on businesses, or threaten such action, with the full support of our WR laws?”)

AREEA’s letter outlines specific proposed legislative solutions to the above problems, as well more broadly calling on the government to put workplace relations reform at the centre of its plans for economic and employment growth during the current term.

This includes building on its current workplace reform agenda by engaging with the recommendations of the Productivity Commission to improve flexibility, productivity and competitiveness of Australian workplaces.

“The government now faces a choice. If it does nothing beyond the specific changes foreshadowed at the election it will continue to foster even greater levels of dysfunction in our federal institutions and workplace relations system which will increasingly start to harm employment, competitiveness, productivity and the living standards enjoyed throughout the Australian community,” Mr Knott says,

“Alternatively, it could get back into the business of equipping Australia to be competitive and efficient on the world stage, and pursue the workplace laws Australia needs.

“This would make Australia as positive and rewarding a place to do business as possible, and ensure employment lies at the heart of the growth of our economy and community.”

Click here to read AREEA chief executive Steve Knott’s letter to Minister for Employment Michaelia Cash. To provide feedback or get involved with AREEA’s workplace relations campaign, contact AREEA head of policy Scott Barklamb via [email protected]