First published in Workforce Daily on 26 October 2016.

Employer groups have urged the Federal Government to broaden its industrial relations reform agenda to include changes to bargaining and enterprise agreement approval processes and an overhaul of the Fair Work Commission (FWC).

The Australian Mines and Metals Association (AREEA) unveiled a detailed catalogue of proposed IR changes and called for a review of the Fair Work Commission which it claimed was “dysfunctional” and “pursued political agendas” and failed to support employers and employees.

Specifically, AREEA advocated for a specialist IR appeals body and replacing the FWC with a set of “modern, balanced employment institutions”.

The Australian Industry Group (AiG) favoured less drastic moves and believed the FWC could exercise more discretion in its decision-making.

AiG workplace relations policy head Stephen Smith told Workforce Daily the recent Uniline and Peabody Moorvale FWC matters demonstrated the Fair Work Act (FW Act) gave the FWC “some discretion to overlook minor discrepancies and technicalities regarding Notices of Employee Representational Rights (NERRs)” (WF 9/9/2016).

“The cmn largely rejected these arguments and decided that the Act requires absolute compliance with the NERR requirements,” he said.

“This is causing lots of problems for employers, employees and bargaining representatives.”

Smith said the issue required legislative change, which AREEA agreed with in its October 18 letter to employment minister Senator Michaelia Cash about its IR reform proposals.

Give FWC power to overlook minor technicalities

AiG and AREEA both encouraged the Federal Govt to implement many of the Productivity Commission’s (PC) 2015 recommendations into Australia’s workplace relations framework, which are currently languishing in the ether (WF 1/7/2016).

Smith said: “The recommendation of the PC that the FWC be given the power to overlook minor technicalities at the approval stage so long as the employees are not disadvantaged, needs to be implemented without delay.

“AiG is continuing to urge the govt to implement many of the recommendations of the PC review, including those relating to enterprise agreement approval requirements, enterprise agreement content, transfer of business, and the abolition of 4 yearly reviews of awards.”

AREEA CEO Steve Knott told Workforce it was “not good enough to concede the cmn is bound and has no discretion” regarding the “hyper-strict application of the NERRs”.

He cited FWC Vice President Graeme Watson’s dissenting view in Uniline that rejecting an agreement negotiated in good faith because the NERRs were issued late “subjected the system to ridicule”.

“The Uniline decision comes on top of agreements being knocked back because of such trivial concerns as documents being stapled together, being on the wrong letterhead or containing an erroneous website or phone number,” Knott said.

“It is right on the mark to suggest that these approaches are subjecting our workplace relations system to ridicule, and worse than that, they risk eroding trust and confidence between employers and employees in workplaces and imposing absolutely unnecessary costs and delays on agreement making.”

Knott advocated tweaks to the FW Act to give the FWC wider discretion to overlook minor procedural or technical errors when approving agreements and extending this to include minor errors or defects in NERRs.

“If the cmn is correct in taking such an impractical, legalistic and over-rigid approach, there is a fundamental problem with our bargaining system that needs to be urgently addressed by the parliament,” he said.