Almost immediately, public opinion rejected the severity of Work Choices. Employers and employees became frustrated with procedural and administrative complexity and the confused transitioning to the new regime. The resulting pressure for industrial relations reform from all proved to be the driving force. The initial product of the Government’s mandate has been the Workplace Relations (Transition to Forward Fairness) Act, which came into effect on 28 March 2008. There has been a lot of coverage of this legislation and its three key elements: preventing the making of new AWAs (whilst introducing Individual Transitional Employment Agreements (ITEA), another form of statutory individual contract), introducing a new ‘No-Disadvantage Test’ now called ‘Better Off Overall Test’ (BOOT) and award modernisation. There have also been a number of other significant but less publicised amendments that affect the interaction between industrial instruments, and employers and employees. In particular, the transitional legislation focuses on enterprise agreements as the primary basis for industrial regulation; including removing the prohibition on incorporation into agreements of terms from other industrial instruments and removing the ability of a party to unilaterally terminate the agreement, reintroducing the arbitral role of the Australian Industrial Relations Commission (AIRC) in deciding whether such a termination is in the “public interest”. The legislation also allows the consideration of former State awards to apply to employees who cease to be regulated by an Australian Workplace Agreement (AWA). minor amendments reflect a repositioning of enterprise agreements as the preferred arrangement, supplemented by common law contracts and underpinned by awards and legislated minima (the National Employment Standards (NES)). Indications suggest that many farming businesses are willing to concede to the end of statutory individual contracts, and some are seeking alternatives – that being individual flexibility agreements (IFAs) that assist with workplace flexibility. Background and Purpose of this submission This submission is made in response to the review (the Review) into the Fair Work Act 2009 (Cth) (Fair Work Act) being undertaken by the ‘Review Panel’ comprising Dr John Edwards, Professor Emeritus Ron McCallum AO and the Hon Michael Moore. The
commenced operation on 1 July 2009, assuming the functions of the Australian Industrial Relations Commission (AIRC), the Australian Industrial Registry, the Australian Fair Pay Commission (AFPC) and some functions of the Workplace Authority. Under section 577 of the Fair Work Act, FWA is required to perform its functions and power in a manner which:- (a) is fair and just; and (b) is quick, informal and avoids unnecessary technicalities; and (c) is open and transparent; and (d) promotes harmonious and cooperative workplace relations. Jurisdiction and appeals FWA has its functions conferred by section 576 of the Fair Work Act, including the following subject areas of relevance to this submission:- The National Employment Standards (Part 2–2); Modern Awards (Part 2–3); Enterprise Agreements (Part 2–4); General Protections (Part 3–1); Unfair Dismissal (Part 3–2); Unlawful termination protections (Part 6–4). NFF views the regulator as performing adequately since its inception. However, it with the Fair Work Ombudsman (FWO) which is a separate agency that exercises important enforcement functions and advises parties on their rights and responsibilities. The consolidation of workplace institutions by itself does not necessarily result in more easily accessible services. This is an ongoing challenge that requires continuous attention to, and funding of, the resources available online, both from FWA and from the FWO. Over the counter information is still highly important as is face-to-face advice and the continued operation of advice lines. We must be cautious that the consolidation of workplace relations institutions does not result in over simplification and the decline of services available.