The Australian newspaper has published an opinion piece by AREEA chief executive Steve Knott about why the resource industry welcomes Employment Minister Eric Abetz’s consideration of an independent review process within the Fair Work Commission.
THE creation of an external independent review process for Australia’ national workplace tribunal, the Fair Work Commission, is long overdue.
Users of regulation are entitled to expect access to an independent review when decisions are made which could adversely impact them, and this includes all parties subject to our workplace relations laws.
Flagged this week by Employment Minister Eric Abetz, an independent and experienced appeals body for the FWC could more clearly establish precedent on key matters, assist the integrity of the system and shine a light on commission members not up to the mark.
In a modern and efficient workplace system, consistency is essential if employers are to apply policies and practices that are in-line with regulatory precedents, lawful and ultimately keep disputes out of the commission.
However in recent times there have growing concerns about inconsistent approaches between commission decisions. The goal of determining employment matters at the workplace level in-line with the Fair Work Act seems to have been lost.
Instead, employers feel the commission has assumed an unduly variable interpretive role in applying what should be quite clear employment legislation, and that it pays insufficient regard to the clear intentions of both the parties and the law.
It is not uncommon for the same subject matter and similar facts to be determined differently simply on the basis of which commissioner parties appear before.
Recent examples include contradictory findings on the right of employers to use urine sampling in alcohol and drug testing policies; or whether an employee can be lawfully dismissed for distributing pornographic material on work computers or physically assaulting a fellow employee.
The list goes on.
When in opposition and shadow minister for workplace relations, Abetz often spoke up in Senate Estimates about one commission member who regularly found against employers and was subject to numerous successful appeals.
It is unsurprising that inconsistent and anti-employer decision making has become prevalent in the tribunal after the previous government treated Fair Work Commission appointments as a political plaything.
Two-thirds of new commission appointments under the former ALP government came from labour lawyer or trade union-affiliated backgrounds.
Then workplace relations minister Bill Shorten also created two new Vice-President positions to effectively demote existing Howard-era appointees, calling into question the independence and integrity of the tribunal.
This imbalance also means there is too often a lack of genuine workplace and commercial experience in determining matters affecting billion dollar investments, such as those on resource industry projects that create employment and incomes for entire communities.
Employers are too often exposed to decisions that contort our workplace legislation to achieve particular outcomes, and to undo employer efforts to comply with legal and commercial obligations.
With the change of government, the need for the commission to focus more clearly on administering what Parliament asks it to administer, is more important than ever.
Greater discipline and consistency are needed and the proposed review panel seems a sound mechanism to deliver it.
The Fair Work jurisdiction will be significantly improved through the addition of a further level of rigor, review and appeal.
It would establish proper precedent for Commission members to follow and assist them do their jobs properly. It could also shine a light on tribunal members who regularly flout established precedents, inviting criticism for partisan union and political influence.
Both the UK and NSW have introduced appeal bodies comparable to that being explored by new Employment Minister Abetz.
These jurisdictions acknowledge that the decisions being made under our employment laws, decisions which impact individual rights and commercial liabilities, are simply too important to be subject solely to a single layer of decision making.
Removing the increasing tug of war between members of the FWC, our parliament, employers and other users of the system, will promote a unified, consistent approach to workplace relations and better support Australia as an attractive place to invest, do business and employ people.
Surely in the end, jobs and opportunities should be what our workplace relations system is all about.
