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Tag Archives: Andrew Stewart


August 13, 2012


FAIR Work Australia’s monumental rebuff to the Transport Workers Union in its dispute with Qantas strikes a blow to the credibility of claims the Fair Work Act is some kind of conspiracy against employers.

The commission (which is what Fair Work Australia is in all but name) had no choice last week but to support Qantas management because, in both its tactics and its demands, the union was being so bloody-minded.

That’s true even though, by grounding its planes worldwide and locking out all its staff last October, Qantas management could come up with no more creative solution to its bargaining problem than to be as bloody-minded as some of its unions.

This was not so much a win for ”managers’ right to manage” as the commission’s commonsense judgment that allthe industrial parties needed to face up to the harsh commercial realities threatening the survival of their business.

Here we had a union demanding 5 per cent annual pay rises at the same time it was fighting to prevent its employer from turning to cheaper sources of labour. That makes sense?

It will be a pity if the commission’s refusal last week to split the difference in the old way encourages other militant employers to seek to resolve disagreements with their workers the chaos-causing Qantas way. Even so, the commission’s refusal to go anywhere near splitting the difference provides powerful evidence it can be trusted to adjudicate issues sensibly in a system that hasn’t swung the balance too far the unions’ way.

Perhaps this explains why the national dailies – which, in their campaigning against the evils of Fair Work, seem to find another story about union atrocities for the front page most days – were not excited by the employers’ big win last week.

Read too much of their stuff and you come away thinking the union movement has risen from its death bed to pose the greatest threat to our continued prosperity. Remember, union membership is down to 18 per cent of the workforce (from 50 per cent in 1982) and 14 per cent of private-sector workers.

Another figure to keep in mind when you read about the union monster poised to eat the economy’s lunch: more than 80 per cent of enterprises don’t have a union presence.

Two labour lawyers, Dr Anthony Forsyth, of Monash University, and Professor Andrew Stewart, of Adelaide University, note in their submission to the Fair Work review that ”the concerns about union activities that so animate certain employers in the resources, manufacturing and construction sectors are very far removed from the issues confronting businesses in other parts of the economy”.

”For the small to medium enterprises that predominate in sectors such as retail and hospitality, both unions and, indeed, collective bargaining are largely absent. Their concerns are much more likely, in our experience, to revolve around the costs and ‘inflexibilities’ imposed by the award system, and the renewed exposure to unfair dismissal claims that the Fair Work Act has brought.”

So far, Fair Work has failed in its aim to greatly increase the extent of collective bargaining, with the proportion of employees covered by collective agreements increasing from 39.8 per cent of the workforce in 2008, to just 43.4 per cent in 2010.

Dr Forsyth and Professor Stewart argue many of these new agreements are effectively non-union instruments drafted by employers to replace the individual workplace agreements formerly available under Work Choices.

Genuine collective bargaining is likely to be confined mainly to large, unionised workplaces in the public sector and to some sections of the private sector.

Much of the bitter complaint about Fair Work comes from the miners. The labour lawyers say what some employers in the resources sector are seeking is a capacity to manage their businesses without the involvement of unions, and to undertake projects entirely free of any threat of industrial action.

‘These aspirations are simply not compatible with the principle of freedom of association … Indeed, to allow them to be fully realised would involve restrictions on the taking of industrial action, or on union rights of entry, that would go far beyond anything envisaged by the Howard government, even during the Work Choices period,” they say.

Talk of Fair Work having unnecessarily bolstered ”union power” should not only be kept in proportion but understood in the context of a broader ideological agenda that is profoundly antithetical to the principle of collectivism, they conclude.

Read more:

01 July 2009 8:16am

Elements of the new workplace relations legislation – including new unfair dismissal, right of entry and bargaining laws – come into effect today.

In this article, HR Daily provides an update and links to recent articles that tell employers all they need to know about the Fair Work Act 2009.

Unfair dismissals
As of today employees with more than six months’ service with large employers (>15 full-time workers) or 12 months’ service with smaller organisations will be entitled to make unfair dismissal claims.

Employees will have 14 days to lodge claims in the event of a dismissal.

Deacons partner Stuart Kollmorgen says that redundancies will be illegal if redeployment options go unexplored.

Good faith bargaining
Business stakeholders are now obliged to bargain in good faith.

Throughout the bargaining process, all parties must attend and participate in meetings at “reasonable times”, respond to proposals in a “timely manner” and disclose relevant, non-confidential information.

Adelaide University Professor of Law, Andrew Stewart, says that employers must determine the kind of information unions are likely to ask for and what they can claim to be confidential.

Freehills partner Chris Gardner says that there are numerous grey areas in the new bargaining laws that must be tested before employers can be assured of clarity.

But CoSolve director Clive Thompson says that the good faith laws could herald a new era of productive bargaining if stakeholders let go of the traditional adversarial approach.

From January next year, collective agreements will have to pass the better off overall test, or the BOOT, before being approved by Fair Work Australia. Under the current rules, the Workplace Authority need only be satisfied that classes of employees won’t experience a reduction in their overall terms and conditions.

According to Kollmorgen, the BOOT could mean that employers are faced with the onerous task of proving that every employee is advantaged under a new agreement. He says that some employers are taking steps to have new agreements approved as soon as possible to avoid the uncertainty that is likely to surround the test from 1 January.

Right of entry
As of today, union officials will have the power to enter premises on suspicion of a workplace breach regardless of whether or not the employees are union members or covered by a union-binding agreement.

However, Freehills partner Anthony Longland notes that officials can only enter premises after clearly articulating the nature of the suspected breach and where employees are “potential” members.

Transfer of business
The definition of “transfer of business” expands significantly today. For the purposes of the Act, a transfer will occur when an employee is engaged by a new employer within three months of a termination where the new and old employers have at least “one connection” and the work the employee performs is “substantially the same”.

Deacons partner Sally Woodward says that this might give rise to the “difficult situation of a new employer potentially being bound by different enterprise agreements in relation to employees performing the same work.”

She says that HR must conduct a thorough due diligence process to identify potential conflicts (where workers on one agreement perceive workers on another to be at an advantage), and to determine the circumstances where they can apply to Fair Work Australia for permission to discontinue old agreements.

And the rest?
Other elements of the Fair Work Act, such as the National Employment Standards and modern awards, will come into effect on 1 January 2010.

More legislation news
For more Fair Work information and news, click here and follow the “legislation” link.

Alternatively, enter key words in the HR Daily search engine, or visit HR Daily’s associate publication, Workplace Express.

Also, see the Federal Government’s new online entry point for the IR system: Fair Work Online.