The Role, Functions and Future of Fair Work Australia in the Australian Industrial Relations - Case Study Example

Running head: Fair Work Australia Student’s Name: Instructor’s Name: Course Code: Date of Submission: Introduction Industries are usually run by business owners with help from employees who sell their labor. It is important for the two to treat each other in a way that reflects fairness and consideration. Australia’s work relations have changed over time, and legislation has been passed in a bid to ensure fairness and better practices in the work environment. This paper seeks to analyze the role of Fair work Australia and its contribution to practices in industry. Fair Work Act Fair Work Australia was established by the labour government, it is the national workplace relations tribunal established under Fair Work Act 2009. It is an independent body that has the authority and power to undertake out various functions including industrial action, dispute resolution, employment termination, enterprise bargaining, and safety net of employment conditions and minimum wages. The act established a new system of regulation that tried to make a more national system for industrial relations regulation in Australia. Employment in itself can be approached in different ways. One of these is ideological perspective, and the other is analytical tools. In terms of perspective, there is a distinction between unitary, pluralism and radicalism. Pluralism approach views the potential for conflict as essential in the employment relationship (Mark & Peter 2009). It is however, manageable and easily handled by rules and regulations. A unitary view on the other hand, sees employer-employee relations as harmonious other than occasional conflict. Fair Work Australia was formed to replace six existing bodies as the new regulator in employment. This tribunal was formed to promote the new laws in the work place. In this case, statutory agreements such as AWAs were done away with but common law contracts of employment remained in force. Human resources management school of thought illustrates the difference between pluralists and unitary ideological perspectives. In unitary ideology, there is an assumption of having each organization of work being an integrated entity with a common goal (Mark & Peter 2009). In case of conflict in the industry, it is mainly viewed to be as a result of poor management or bad communication. Unitary ideology is supportive of strong leadership to direct the aims and goals of any industry by management. It is mostly managerial oriented. Another approach to work relations is radicalism which has an element of pluralism. It emphasizes the conflict that exists between interest of workers and employers in any industry. It shows that conflict is more of a class related problem rather than just an employment relations occurrence. It takes consideration of the conflict between hose who own the means of production and those who sell labor (Mark & Peter 2009). These concepts and theories were all considered in the formulation of the fair works act. Fair work Australia is an independent body that acts as a tribunal in the work place. Its work is usually carried out by its members. This tribunal began its operation after the enactment of the fair work act of 2009. It assumes the functions of the Australian Industrial Relations commission, the industrial registry and Australian fair pay commission that was established in 2005. In the Fair Works Act, national employment standards were put in place for the minimum conditions for all workers nationwide. These provisions included annual leave, flexible working schedules for parents, personal leave, a notice incase of termination and redundancy pay (Healy 2010). This act further broadened the scope of unfair dismissal beneficiaries by covering all enterprises with less than fifteen full time positions. Fair Work Australia was hence, established to enforce these provisions and all others stipulated by the fair work act. Fair Work Australia has various roles that it undertakes. Fair work Australia after its establishment, has taken up functions to regulate the national workplace. In the first place, it sets a limit of minimum conditions that need to be met in the work place. These include minimum wages and other awards. By doing this, it helps protect the workers from exploitation in employment. It also helps cushion employees against prevailing inflation conditions by raising the minimum wage and benefits. Secondly, this tribunal helps in the facilitation of bargaining and agreements between various enterprises. In this way, it helps ensure a smooth running economy whereby competitors can thrive in a market that is fair for all. It further, ensures that those wishing to make agreements on trade do so in an environment that is conducive (Dabscheck 2009). Thirdly, Fair work Australia helps to solve problems arising from unfair dismissal. In cases where employees are dismissed from work without an appropriate reason, the tribunal intervenes to solve the problem by providing remedies for the same. Unfair dismissal maybe due to discrimination in the work place or in cases whereby, the employer dismisses an employee from work without following the procedures written in the contract (“Termination in Australia: The implications of changing the unfair dismissal and termination law.”2010). Another function of the tribunal is to regulate industrial action. Industrial action may be in the form of strikes, demonstrations, picketing, or go slows within the workers union. Fair Work Australia hence takes the responsibility of regulating such action to ensure it is carried out within the law and does not negatively affect the industries. Through mediation and arbitration, the tribunal helps to solve disputes within the work place (Barnes & Lafferty 2010). Fair Work Australia also helps in the determination of equality and working conditions. It helps to determine equal remuneration within the industry by ensuring that laws are in place to protect employees against discrimination. It further, helps regulate the transfer of business from one area to another to ensure harmony and equal investment in all areas of the country (“Termination in Australia: The implications of changing the unfair dismissal and termination law.”2010). Fair Work Australia further, plays a role in ensuring that there are protections within the work place. This is to ensure safety of all. It also assumes the role of granting entry to businesses into the industry. They are several reasons as to why the Fair Work Australia was established. Fair Work Australia is governed in its mandate by the fair work act which brought tremendous changes in Australia’s industry. Fair work Australia was set up to enforce the fair work act. Some of the changes include dismissal laws. Through the act changes have been made to the effect that employees who have claims over unfair dismissal should lodge their cases within a few days of dismissal rather than the previous norm which was 21 days. Under the act, workers or employees who have not completed 12months in service cannot lodge claims for dismissal against a business. Furthermore, employees who are dismissed for redundancy don’t have a right of claim (Waterhouse & Colley 2010). However, a balance is created within the act by placing the burden on the employer to prove that a redundancy occurred. With enactment of the fair work act, the Australian Industrial Relations Commission and the Australian Industrial Registry ceased their operation. Fair Work Australia took up their remaining functions. Other changes include the replacement of the no-disadvantage test with the better off overall test. The act helps to set up a national industrial relations system which covers all employment by constitutional corporations. In victoria, ACT, and NT it also covers all other employment. In NSW, Qld, and SA, it also covers all private sector employment while in Tasmania; it covers local government employment and the private sector (Sloan 2011). Areas not generally covered by the national Industrial relations system include Western Australia whereby the local government and state public sector are not covered. In NSW, Qld, SA, the state public sector and local government employment are not covered. Finally in Tasmania, the national industrial relations system does not cover the state public sector employment. Those not covered by the system, remain covered by the industrial systems that are applicable in the state (Sloan 2011). Bargaining rules also changed with the new act and employers are required by law to attend meetings and participate in disclosure of important information. Unions under this act can also take part in enterprise agreements, as long as they represent an employee from their work place. These changes further, give unions provisions for right of entry. Having at least one member, unions can investigate breaches in legislation that pertains to working conditions. This act further, includes protection of contract workers and employees. In its provisions, it includes protection in industrial activities and against all forms of discrimination in the work place (McCrystal 2010). Collective bargaining under the fair work act regulates the terms or conditions under which employees are hired by employers. It also stipulates treatment of future employees. In essence, collective bargaining is a mechanism whereby both employees and employers and their representatives can voice their objectives regarding conditions of work (McCrystal 2010). Collective bargaining in itself is a form of rule making whereby, adjustments to hours, wages and other variables are expected. Change takes place when parties come to an agreement and new terms are drawn. Good faith bargaining is also an improvement brought about by the act. Attending and participating in meeting at reasonable times, responding to any proposition forwarded by bargaining representatives of the other party are both set out in the act as meaning of good faith. Disclosure of relevant information and avoiding unfair conduct that may undermine collective bargaining are also recognized as good faith by the act. Good faith according to the act also includes considering proposals forwarded by the other party (Dorsett & Lafferty 2010). It is important for the parties to cooperate to ensure minimum wastage of time as this may negatively affect business. There are provisions incase parties that are doing the bargaining do not comply with the good faith requirements. In this case, the party complaining against the other for absence of good faith, should first forward a written notice that gives details of the allegations.This notice should be given to the bargaining representatives (Dorsett& Lafferty 2010). Time should also be given for the parties to respond to the concerns. When there is no response from the other party, Fair Work Australia can issue a bargaining order. If the same is ignored by the mentioned party, Fair Work Australia can declare a serious breach. In every bargaining, employers should notify employees of their rights to an agent. Bargaining agents according to the Fair Work Act of 2009 may include the employer, or representative appointed in writing by the employer (McCrystal 2010). An employee reserves the right to appoint himself or herself as the bargaining representative. He or she may also appoint a representative to take their place in the bargaining. Some implications of the fair Works Act have made a great impact in industrial relations within Australia. Bargaining is no longer based on emphasis of individual agreements but is rather focused on collective bargaining at the enterprise level. Low paid Bargaining scheme which is new to the system seeks to deal with the issue of inequality in the lower sectors of the economy (Healy 2010). Centered on the award system, industrial relations at the federal level set out standards through arbitration and conciliation.Using the corporation power of the constitution ensures the act is applied to most Australian employees. Furthermore, separation of industrial relations power of the state from the common wealth serves to extend coverage of the act. All employees have a right to ten National Employment Standards according to the fair works act. These are almost similar to the five Australian Fair Pay and conditions standards that were under work choices. Minimum conditions covered include maximum week (Harper & Mckibbin 2010) In this case,an employee may not be forced to work beyond the maximum working week unless an agreement has been struck that incorporates compensation for the work. Another condition is the request for flexible working arrangement. This mostly, affects parents with young children who require more time with child care. Another minimum condition is parental leave and entitlements that are related. This takes into consideration the need of employees with children to spend time with their young. Annual leave is also embedded in the minimum conditions and this will ensure that employees can get to rest without fear of dismissal or losing their remuneration (Brown 2010). Personal leave or compassionate leave is another condition entrenched within the act. Other conditions include long service leave, community service leave, and public holidays, notice of termination and redundancy pay and fair work information statement. Incase of parental leave, both parents are entitled 12 months unpaid leave between them and it should be taken consecutively other than in the case of three weeks after adoption or giving birth whereby both parents can take leave. This obligation extents to all employers and includes same sex couples. Minimum wages are reviewed each and every year (Healy 2010). There are a number of agreements covered by Fair Work Australia. Enterprise agreements can be made between employers and employees at an enterprise level. Any disputes that may arise are dealt with by Fair Work Australia which also, assists in the process of making of such agreements (Campbell 2010). Parties that can make an enterprise agreement include; employees and in the case of green fields agreements relevant employee organizations may be involved. There are a number of reasons as to why enterprise agreements are made. One of the reasons is the fact that awards provide only a safety net of minimum rates of pay and employment conditions. Agreements are hence crafted to meet conditions in particular enterprises (Rice & Roles 2010). An agreement may include the rates of pay, procedures for dispute resolutions, and consultative mechanisms. It also includes deductions for wages in any case that may be authorized by an employee, and conditions for employment such as hours of work or overtime. There are three types of enterprise agreements. Firstly, those involving a single employer or more than one employer arereferred to as single enterprise agreements. Another type is commonly referred to as multi-enterprise agreement, and involves two or more employers who are not of a single interest. Finally, green fields’agreements involve new enterprise established by one or more persons who are not yet employed (Rice & Roles 2010). They can either be single-enterprise or multi-enterprise agreements. Before industrial action can be taken, a protected action ballot is required in the case of employees in order to authorize it. A written notice must always be given to the other party and it must be given at least three days in advance of the said action. Fair Work Australia however, has authority to bring to an end any industrial action regardless of whether it is protected or not in some cases (Barnes & Lafferty 2010). This may include any industrial action that may lead to detriment of the economy of employers who are covered by the agreement. It may also terminate industrial action where there is a threat to life or safety of the Australian population. It is important to take note that industrial action acquires protection only in relation to bargaining for an agreement. Disputes that may arise on right of entry can be launched by Fair Work Australia if the permit holder makes an application. It can also happen when the employer or permit holders organization makes an application to that effect. Occupants of a premise may also apply for Fair Work Australia to intervene in a dispute. If any of the above takes place, it is within the powers of Fair Work Australia to make orders that may in effect suspend a permit, impose conditions on it, revoke it, or it may make orders pertaining to future issuance of entry permits (Sloane 2011). There are a number of details included in an entry notice. One of them is details of premises that are to be entered by the permit holder. It also contains the date and organization that the holder belongs to. It further, contains the section of the fair works act which gives authorization for the entry and any details of a suspected breach. This notice may also contain a declaration by the holder showing they represent an employee working within the premises of which a breach may relate (“Labour force participation, social inclusion and the fair work act: current and carbon-constrained contexts”2010). It includes provisions that show the organizations right to represent employees. There are some rules or code of conduct that permit holders should abide with. They must always abide by conditions that are imposed on their permit and comply with safety and occupation requests. Permit holders must further abide with requests that may be forwarded to hold discussions in a particular area of the premise (Dabscheck 2009). They should always act in a particular way and avoid obstructing others. Finally, permit holders should not enter premises that are used for residential occupation. Having a permit entitles the holder to a number of rights. He or she has the right to carry out inspection and copying of records and documents regarding any suspected breach. A permit holder must further not be delayed entry into the premises or hindered from exercising their right. He or she should not give an impression of being authorized to carry out activities that they are not. They must also not use information gathered for any other purpose a part from investigation (“Labour force participation, social inclusion and the fair work act: current and carbon-constrained contexts”2010). Fair Work Australia has a great future in the Australian Industrial relations system. Fair Work Australia being operational within the federation, has a great future ahead regardless of whether the federation splits up or not. This is because the fair works act was ratified by all states and should therefore have little effect incase of a split. This act is viewed by most as a balance between the rights of employees and that of employer associations and is far better than the previous legislation of work choices (Sloane 2010). It performs most of the roles carried out by the Australian Industrial relations commission and the Australian fair pay commission. Australia’s future in the work relation can only improve as more legislation is passed to effectively deal with the shortcomings of Fair work Australia. Fair work Australia will likely remain in force in most states even if the federation were to be abolished. This is because each state has its own unique application of the act and limits the extent to which it affects the industrial relations. It is thus, not likely to change with political change and can only be modified or improved to suit present challenges in work relations. Conclusion Fair Works Australia has had a great impact in the Australian work relations. Having been passed in 2009, the fair works act has helped regulate industrial relations in terms of acting as both arbitrator and enforcer of the act. It has helped to ensure that most Australian workers are compensated with a minimum wage. It has also helped improve the lives of employees by ensuring their rights are upheld. Fair works Australia to a large extent, has helped to ease problems faced by employers as a result of industrial action. This is because the tribunal controls all forms of industrial action and ensures all rules are followed concerning the same. This helps to prevent losses that may accrue to employers as a result of unjustified industrial action. The act also gives provisions for bargaining of terms of employment between employees and the employer. 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