Introduction
The Work Choices legacy has been one of declining unionization and less collective bargaining in workplace relations. Conversely, the Fair Work Act (FW Act) 2009 is seen as a tool for reinstating enterprise wide collective bargaining. In this proposal, it shall be argued that the FW Act is a far better legislation for collective bargaining than previous legislations through an analysis of the core values in the legislation and some of the particular workplace changes that have been and will be altered through implementation of this law.
The current situation on collective bargaining
Collective bargaining in Australia has often been viewed as an adversarial relationship. The battle is often between workers, their unions or representatives and their employers. There has been little room for consensus and this has led to excessive arbitration as well as continual mistrust between parties in workplace relations.
There is a need to move from these hostilities to a more harmonious approach to collective bargaining (Forysth and Stewart, 2009). Although things are changing after instatement of the Fair Work Act in 2009, the workplace arena is yet to undergo a paradigm shift from the old way of viewing industrial relations to this new one.
Prior to the passing of the FW Act, statutory individual agreements were the main way of bargaining between employers and their workers. This was especially enforced through the Work Choices Act of 2005. The latter legislation made it okay for employers to refuse to negotiate with unions if and when the need arose. Individual agreements were the order of the day and employers often had the upper hand. Currently, this has changed slightly because the new legislation does not encourage these approaches to collective bargaining.
Why laws regulating collective bargaining are important
One cannot fully exhaust the reasons why legislating collective bargaining is important because the matter is quite lengthy. However, at the heart of it, is the need to protect the rights of employees. These rights should not merely be thought of theoretically because they often translate into practical applications for workers.
Workers who enjoy union membership or who have applied collective bargaining often benefit from better working conditions; which is an important process of these expressions. They also gain the advantage of having better pay at work and employers who listen to them (Cooper and Ellem, 2009).
Making laws on collective bargaining can potentially increase the level of productivity at work. This is because if employee’s rights are protected, then chances are that they are likely to concentrate at work and this may affect their outcomes. Eventually, high productivity among individuals translates into higher productivity nationally thus contributing to greater competiveness globally.
Industrial action is always a potential problem in the workplace setting. Sometimes employees may try enterprise bargaining to no avail and this may reach an impasse. To this extent, they may choose the industrial action route. It is always necessary for the law to have a clear cut definition of matters that can legitimise an industrial action.
Furthermore, legislations on collective bargaining can also lay out the procedures that employers can follow during a strike. To this end, the degree of industrial action can dramatically reduce once legislations are clear on them (Mc crystal, 2008). Arbitration during industrial action can also arise so it is always important to have laws that clearly lay out the processes for arbitration or the conditions thereof.
In order for Australia to be viewed as progressive in terms of human rights, then it needs to accord its workers decent working conditions. It should also be such that it encourages fair treatment at work as well. These are all key elements that are covered in collective bargaining laws and should therefore be highly encouraged.
Why the Fair Work Act 2009 should be retained
One of the most important reasons why the Fair Work Act 2009 should be retained is that it advocates for cooperation within the workplace relations setting.
These specifics can be found in clause 577 (d) of the FW Act. Furthermore, it looks towards restoring some balance in workplace relations by focusing on productive relations over and above any other arrangement. To this end, it is likely that unions, employers and employees will develop constructive relationships between themselves as they continue to interact with one another.
This represents a shift from past approaches and therefore marks a hallmark in the future of collective bargaining (Forysth and Stewart, 2009). Cooperation in this Act is to be achieved through the good faith principle. The FW Act advocates for the replacement of arbitration with good faith. This means that emphasis should be given to the process rather than the outcomes of collective bargaining.
It is likely that parties will show good faith because the legislation even gives specific ways of how this can be achieved such as through information disclosure between bargaining parties, giving responses to requests and avoiding unfair conduct. The explicit nature of these obligations is what is likely to lead to such great success in implementation of the FW Act in the future thus streamlining collective bargaining (Cooper and Ellem, 2009).
It is also interesting to note that the Fair Work Australia body will only be consulted in cases where the said stakeholders illustrated that they were not willing to abide by the good faith principle. In this regard, parties are expected to look for other alternatives to making an agreement work before they can make a declaration that a breach has been reached.
Before a declaration can be made, Fair Work Australia must not only ensure that all alternatives have been sought but that there is no hope for consensus in the future. Even after the FWA have decided on a declaration, they still allow for a twenty one day period where the parties are to sit down and discuss their contentious issue so that they can try and reconcile.
Once this has failed then it is only at this time when the Fair Work Australia body will declare a workplace determination. As can be seen the process of getting a serious breach is very complicated and this causes many parties to look for internal ways of coming to agreements and therefore enforces harmony at the workplace (Cooper and Ellem, 2009).
On the other hand, some critics might look at these immensely complicated processes for reaching agreements as an obstacle to real bargaining because they may force parties to concede to decisions. However, does not occur because hard bargaining is allowed as was seen in the case of National Union of Workers versus ACCO Australia Pty Ltd 2009. These two groups had reached an impasse and there was a need to establish whether the parties were exercising good faith by trying to reach an agreement.
The presiding Commissioner asserted that the respective groups were entitled to hard bargaining which was separate and distinct from not trying to reach an agreement. This case therefore illustrates that the legislation still leaves enough room for tough negotiation and that parties need not be forced to take on positions that they do not desire. It is indeed a fair legislation.
The Fair work legislation also accords freedom for employees engaging in collective bargaining to a certain extent. This is because it allows workers to select any party as a representative during bargaining. In this regard, employees are allowed to select individuals or groups such as unions.
Therefore, this legislation is an improvement over past regimes when it comes to collective bargaining because it allows for union formation. It should be noted here that unionisation is not explicitly stated because the emphasis in the Fair Work Act was on individual’s rights at the workplace. However, because in the process of collective bargaining, unions must come in, then this matter is effectively handled in the Act. The doctrine of good faith is sufficient to cover aspects of unionisation.
The Australian Labour Party firmly believed that industrial action was a serious problem and that the regulation of illegal strikes needed to be implemented thoroughly and without any compromise. Similarly, the Coalition agreed with these sentiments hence explaining why little has changed in terms of industrial action within the Fair Work Act. This minimal changes work well for the legislation because opposing parties had a consensus on industrial action prior to the FW Act so maintaining it is quite wise (Mc Crystal, 2008).
Another important feature about the FW Act is its ease of use. It is quite uncomplicated to go through the legislation and most of the elements regulated are clearly laid out (Forsyth and Stewart, 2009). This means that there is indeed no need to include certain micro legislations later on that may eventually compromise the intention of the Fair Work Act. Simplicity in any piece of legislation often implies that the persons using it can effectively understand their obligations and their rights and this harmonises workplace relations.
The FW Act ought to be retained because of its ability to incorporate flexibility and fairness within the workplace. It has managed to tackle the issues of discrimination while at the same time considered the concerns of managers because most of them are needed in order to make the idea workable.
In this regard, the issue of a national minimum wage has always been a central issue in collective bargaining. Consequently, a legislation that establishes a fair way of regulating the national wage is always laudable. In this law, the FW Act has stated that the Australian Fair pay commission will be responsible for conducting an annual review of the country’s wages (Stewart, 2009).
This means that the reinstatement of certain employment standards will be restored and this will contribute greatly towards the restoration of worker’s collective rights. Forysth and Stewart (2009) note that this was a concept borrowed from overseas i.e. the British who have a Low Pay Commission in charge of determining the statutory minimum. If the latter model worked well for Britain then perhaps the same thing may be said of Australia.
Some opponents to the Fair Work Act have stated that the core principles inherent in this legislation are not new in industrial relations around the world. The concept of good faith was borrowed from the United States yet there isn’t much to say about unionisation and collective bargaining in the latter country.
These sceptics have affirmed that perhaps Australia will head in such a direction if it continues to do the same. However, what they have not considered is that the collective bargaining in any country cannot succeed without the right institutional structures. In the United States, there is a lack of supportive jurisprudential structures for their good faith concept hence explaining why the idea was not workable there.
Perhaps another crucial strength that can be linked to this Act is the issue of National Employment Standards. The manner in which issues have been clearly outlined in the legislation is quite commendable and they all demonstrate how the needs of employees have been placed at the centre of the Act.
This legislation has tried to achieve a balance between family issues as well as work related responsibilities. In other words, work life balance has been brought on by the Fair Work Act. For example, parental leave has been redefined in order to include gay couples such that minimal discrimination in the workplace can be instated. Parents are allowed to ask for combined leave if they so wish. Additionally, working extra time has also been regulated with employees being granted the rights to reject unreasonable hours.
There are many more issues that have been added to this legislation to make it quite proactive in terms of worker’s rights. It is likely that employers and employees may disagree over issues like parental leave, working extra hours and entitlements to couples, by explicitly stating what is the national employment standard, the Fair Work Act has gone a long way in simplifying matters during collective bargaining because individuals now know what to expect and what not to expect after negotiation (Stewart, 2009).
It should be noted that this legislation does not just favour members of one group over another because it would seem as though employer’s concerns have been pushed aside. However, this legislation is quite fair. First of all, employers possess the right to be heard. Unions and employers ought not to assume that they have a smooth ride because all the rules support their side.
Bargaining needs to be done fairly enough as was seen in the case of Australian postal Corporation versus CEPU (2009). In this case, the union wanted to stop independent contracting by the Australia Post. Fair Work Australia found against the union and declared that employers had their side of the story and ought to be heard.
This case demonstrated that the FW Act has redefined how bargaining is to be carried out. Employers can also be aggrieved parties in negotiations and they need to be protected. Sometimes employers may need to make changes in their workplaces while a negotiation is going on; this legislation allows for managerial changes during such processes.
This makes sense because the negotiations may be going on for a long time and yet those workplace changes may be needed immediately. This legislation is therefore not one sided in that it does not overly lean towards the concerns of employees without bothering about employers. Such a quality is always very critical in ensuring the success of a given Act.
When one side is overly favoured over the other then this may result in opposition from the other party and may eventually translate into failure of that legislation. In fact the concept of balance has an important part of the fair work act 2009. It was not just seen as a law for protecting worker’s rights or union assertions; it was also seen as a platform for merging the latter concerns with those of businessmen.
Political leaders from the opposition and the government often have their endorsements of some of the regulations that need to be made in collective bargaining. Some of them may support business interests over and above workers needs while others may be more interested in restoring union representation. The Fair Work Act reconciles both types of political leaders because none of their needs have been totally met but also none of them have been totally ignored. It struck a balance in meeting these interests.
The latter law is also important because it has been able to restore affirmative action into collective bargaining realms. Although not explicitly stated in the legislation, Fair Work Australia has the prerogative to order equal remuneration for males and females if it has been shown that the latter parties are doing the same work.
Although such a provision was made available in the past through the Workplace relations Act, the Fair Work Act is different because it stretches the mandate of Fair Work to make these orders concerning equal pay.
It is interesting how this law was able to strike a balance between employer’s need to manage (either through instatement of certain workplace related changes or through their right to be heard during negotiations) and employees’ rights. The issue of unfair dismissal has been thoroughly discussed in the legislation and should therefore result in more effective outcomes in the future.
Lastly, the multi enterprise provision in the Act assists employers by eliminating some of the excessive procedures that they may go through when negotiating through the use of single enterprise agreement. This creates simplicity in bargaining and therefore enhances business interests.
Conclusion
The Fair work Act does a lot for employers and employees alike. At the heart of it is the move towards cooperation at the workplace such that adversarial relationships can be eradicated. Furthermore, the legislation propagates the principles of work life balance and minimal workplace discrimination.
It also advocates for social inclusion and enhances workers rights through the parental leave provisions as well as through unfair dismissal provisions. On the other hand, employers concerns have also been addressed through provisions of the nature of bargaining and through the multi enterprise agreement.
References
Forsyth, A. (2007). ‘Worker Representation in Australia: Moving Towards Overseas Models?’ Australian Bulletin of Labour , 33
Forsyth, A. And Stewart, A. (2009). (Eds), Fair Work: The New Workplace Laws and the Work Choices Legacy, The Federation Press, Sydney
Stewart, A. (2009). ‘A Question of Balance: Labor’s New Vision for Workplace Regulation’ Australian Journal of Labour Law 3: 29
McCrystal, S. (2008). ‘A New Consensus: The Coalition, the ALP and the Regulation of of Industrial Action’
Cooper, R. & Ellem, B. (2009). Fair work and re-regulation of collective bargaining. Australian journal of labour law, 22, 284-306