Shae McCrystal

Industrial legislation in Australia in 2012

The year 2012 produced a high volume of developments in the industrial relations law sphere. The Review of the operation of the Fair Work legislation dominated the federal agenda and, accordingly, is the primary focus of this article. We detail key recommendations and outcomes of the Review, including associated amendments. Next, we consider other federal changes, which were expansive in focus. Federal reforms included: a new legislated employee entitlements scheme to replace the administrative General Employee Entitlements and Redundancy Scheme; new regulation of the road transport industry; an overhaul of workplace gender equality legislation; revised governance obligations for registered organisations; and the introduction of the ‘dad and partner pay’ scheme as part of the Commonwealths parental leave package. Turning to the states and territories, we summarise public sector workplace law changes in both New South Wales and Queensland and address other notable developments across jurisdictions.

Industrial Legislation in 2011

Consolidation and industry-specific legislation were two general themes in 2011 federal developments, signifying a shift in the legislative agenda after the implementation of the Fair Work Act 2009 (Cth). Starting with the first theme, this article considers: steps towards streamlining federal equality law; the progress and pitfalls in the occupational health and safety harmonization process; and proposed enhancements to the national paid parental leave system, including steps to resolve teething problems caused by the interaction between Paid Parental Leave and Fair Work legislation. Second, we review industry-specific developments. These include: a Bill to introduce a ‘safe rates’ regime and allow for independent contractor collective bargaining in the road transport sector; and a Bill to extend the bulk of Fair Work Act 2009 (Cth) protections to textile, clothing and footwear industry contractors and make it easier for these workers to recover unpaid debts across the supply chain. Third, we summarize relevant state developments, which were diverse in focus.

Industrial Legislation in 2010

Two themes in legislative activity in 2010 were national uniformity and some movement in using law to promote equality, especially gender equality. The Fair Work Act 2009 (Cth) came into full effect with the commencement of the new safety net provisions and the referral to the Commonwealth of industrial relations powers over private-sector workforces in all states except Western Australia. Progress continued on the promised harmonization of Australian occupational health and safety laws with the release of a model Work Health and Safety Bill by Safe Work Australia, although developments in some states threaten to derail the process. An attempt to repeal most of the industry-specific regulation of the building and construction industry failed. The Federal Parliament passed legislation establishing a national paid parental leave scheme, and a number of changes to federal discrimination laws came into effect or were proposed, including the potential consolidation of federal discrimination legislation. This article provides an overview of these developments at federal level and concludes with a discussion of developments in the states including a brief overview of Victoria’s new equal opportunity legislation.

Shifting the Balance of Power in Collective Bargaining: Australian Law, Industrial Action and Work Choices

The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) effects significant changes to the provisions of the Workplace Relations Act 1996 (Cth) governing industrial action in the federal workplace relations system. This paper examines these changes, situating them in the context of the historical relationship between law and industrial action in Australia, and evaluating the impact of the changes on the balance of power in voluntary collective bargaining. The paper argues that the Work Choices changes have elevated the power of employers, and protection of third party welfare, above access to the right to strike for employee participants in collective bargaining.

Protected Industrial Action and Voluntary Collective Bargaining Under the Fair Work Act 2009

This article explores the enactment of a right to strike in the Australian federal industrial relations system in order to ascertain what the legislation reveals about the commitment of successive federal governments to the principles of voluntary collective bargaining. The article reflects briefly on Australias international obligations to respect the right to strike under ILO and UN Conventions before outlining the main features of protected industrial action under the federal system from 1993 through to the passage of the Fair Work Act 2009 (Cth). The discussion reveals that the right to strike in Australia is very limited, particularly with respect to the content and level of agreement making that may be supported by protected industrial action. Focusing on multi-enterprise agreement making in particular, the article concludes that the current legislative regime does not permit industrial parties to determine their own industrial agendas and support those agendas through protected industrial action.

Protected industrial action ballots: An empirical view

Workplace relations in Australia, including requirements relating to the use of industrial action in the context of enterprise bargaining, are governed by the Fair Work Act 2009 (Cth) (FW Act). Legally protected industrial action by employees and their bargaining representatives can lawfully be taken only in the context of, and is conditional upon, approval through a secret ballot of the employees to whom the proposed agreement is to apply. Conducting such a ballot is itself conditional upon first obtaining a protected industrial action ballot order from the Fair Work Commission. Whilst there is a relatively large body of published industrial relations research exploring both the frequency and the impact of strike action, there is significantly less published material on the regulation of decisions relating to industrial action by workers and their trade unions. This article provides a preliminary report on a research project which is intended to help fill this gap in the literature. Drawing on data resulting from an analysis of every protected industrial action ballot order application made to the Fair Work Commission during the reference period, the article describes the protected industrial action ballot order process in practice. This in turn facilitates understanding of the regulatory contribution made by the provisions and raises significant questions over whether the administrative burden is justified by the outcomes achieved.

Is there a 'Public Benefit' in Improving Working Conditions for Independent Contractors? Collective Bargaining and the Trade Practices Act 1974 (Cth)

The role of collective bargaining as being undertaken to improve the working conditions of independent contractors is discussed. The public benefit test is a substantial obstacle to independent contractors utilizing collective bargaining to improve their working conditions.

Unfair Dismissal, Reinstatement and Garden Leave: Blackadder v Ramsey Butchering Services Pty Ltd

In most cases, the employment relationship is capable of withstanding some friction and doubts ... It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed guilty of a wrongdoing. The requirement may cause inconvenience to the employer. ... The problems will be of the employers own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived.1