Joellen Riley

Industrial Legislation in 2005

The federal government’s WorkChoices reforms - finally passed by both houses of Parliament in December 2005 - dominated legislative development in the industrial relations field in 2005. This report digests the main features of the extensive changes wrought by this legislation, including the ‘hostile takeover’ of the State systems, the establishment of a new wage-fixing body, changes to workplace bargaining, more draconian controls on industrial action, and the changes to unfair dismissal protection. A constitutional challenge to this legislation has been lodged by several State governments. The outcome of this challenge will not be known for some time.

Industrial Legislation in 2009

In 2009, two major pieces of industrial legislation were enacted to give effect to the Labor Government’s commitment to replace Work Choices with laws for ‘Fair Work’. The Fair Work Act 2009 (Cth) promises to bring greater stability and simplicity to Australia’s workplace relations system. However, transitional rules in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) mean that it will be some time before participants in the system can enjoy these benefits. This review gives a brief account of both Acts before examining in more detail the enterprise bargaining rules which commenced operating in July under the supervision of a new institution, Fair Work Australia. We then consider two aspects of the Fair Work legislation which are most likely to provoke controversy when they commence operating in 2010, the adverse action and transfer of business provisions. We also look at the steps taken by federal and state governments to move towards a national system of workplace relations.

Industrial Legislation in 2000

A review of legislation passed and proposed in 2000 suggests a change in the direction of regulatory reform in Australia and New Zealand. A fresh concern with equity issues has tempered the push for efficiency-oriented reform. The Australian Federal Government’s attempts to further restrict industry-wide industrial activity in favour of enterprise based bargaining and individual contracting have met resistance from a Senate concerned with the fairness of the proposed reforms. New legislation passed or proposed in other jurisdictions (notably New Zealand, Victoria and New South Wales) has focused on amendments to take care of the casualties of the 1990s reform agenda—dependent contractors, long term casuals, and the low-paid. Changes to the Corporations Law have been enacted to make company directors more responsible for protecting employees’ accrued entitlements.

Industrial Legislation in 2002

Legislation proposed and passed in 2002 continued to demonstrate the close alliance between law and politics in this field. While the Federal government pressed on with its Workplace Relations third wave (the Registration and Accountability of Organisations legislation being its only significant success), recently elected Labor governments moved in contrary directions. The Gallop Labor government’s new Western Australian industrial laws feature in this report, and there is also a brief review of the Rann government’s commissioned review of South Australia’s industrial law. New South Wales introduced some protective measures for outworkers—and also restricted access to unfair contracts review to ‘high flyers’.

Bargaining for Security: Lessons for Employees from the World of Corporate Finance

The plight of employees who lose accrued entitlements when their corporate employers collapse is a matter of continuing political and industrial interest. After the National Textiles collapse in January 2000, the Howard government introduced the Employee Entitlements Support Scheme to provide a taxpayer-funded, minimum safety net to cushion employees from the worst effects of employer insolvency. Just prior to the 2001 federal election, a more generous General Employee Entitlement Redundancy Scheme was introduced. These are administrative solutions, susceptible to the fickle winds of political expediency. There have been many calls for longer term legislative solutions—through industry-wide or national insurance or guarantee-fund schemes. This article explores a further alternative: using existing long-standing commercial law principles and practices to bargain for security. If employee representatives were to examine the principles of corporate law, and adopt the practices of corporate financiers, they might bargain more effectively for better protection than may be offered long term by a welfare-based safety net.

Industrial Legislation in 2006

The complete overhaul of Australian labour laws by the federal governments Work Choices revisions continued to dominate debate and legislative activity throughout 2006. This article first considers some of the legislative and non-legislative regulatory responses of the State governments, and then outlines the implications of the new federal Independent Contractors legislation. Some late fine-tuning of the post-Work Choices, Workplace Relations Act to address problems identified in its first six months of operation is also noted.

Industrial Legislation in 2003

Despite the promise of cataclysmic change, 2003 saw very few, and very moderate reforms to industrial laws. The great debates—about a unitary industrial relations system, greater legal discipline for the building and construction industry, paid maternity leave, compulsory individual contracts in the higher education sector—left no lasting footprints in 2003. The most significant reform, achieved at the very end of the year, was the enactment of more safety net protection for Victorian workers. Otherwise, legislative change represented small incremental steps. This review notes the highlights from the year’s debates, and explains the changes that were actually introduced.

Alternative Dispute Resolution and Individual Workplace Rights: The Evolving Role of Fair Work Australia:

This article examines the dispute resolution practices of Fair Work Australia that are evolving to deal with individual workplace rights, as its traditional role shifts away from conciliating and arbitrating collective industrial disputes. The workplace rights enshrined in the ‘general protections’ provisions in Part 3-1 of the Fair Work Act 2009 protect employees and prospective employees from any ‘adverse action’ taken against them because they are exercising a workplace right, or because they fall within one of the protected categories, such as the right to be free from discrimination. A broad range of alternative dispute resolution processes is now available to Fair Work Australia in dealing with such disputes. Alternative dispute resolution processes are seen as a way of avoiding costly and time-consuming litigation, and in some circumstances can improve access to justice for individuals. This article explores whether Fair Work Australia is likely to adopt different dispute resolution approaches from its traditional conciliation practices when managing ‘general protections’ applications, and whether the framework for dealing with these disputes will facilitate fair recognition and enforcement of workplace rights.

Industrial Legislation in 2001

At the federal level, the year 2001 saw much legislative activity in the form of bills, debates, revisions and rejections--but very little progress for the government’s ‘third wave’ industrial reform program. Apart from some changes to the unfair dismissals regime, much important legislation was left on the table when Parliament rose before the November federal election. Around the states, small but important changes to leave entitlements and other matters suggest some fine-tuning to ensure the most vulnerable workers are protected, but generally indicate stability in state industrial regimes.

Major court and tribunal decisions in Australia in 2015

A number of significant Federal Court and Fair Work Commission decisions decided in 2015 reveal the approach that each institution (the court on one hand and an administrative tribunal on the other) has taken to the interpretation and application of important workplace law principles and rules. These include the abiding question of ‘who is an employee’ and therefore covered by workplace laws; how the General Protections in the Fair Work Act should operate; what constitutes ‘fair’ treatment for the purposes of the Commission’s unfair dismissal and workplace bullying jurisdictions; and how flexibly (or technically) the rules for enterprise bargaining should be applied.