Did the Rudd Government Get the Balance Right with the Fair Work Act - Case Study Example

ASSIGNMENT By Name Course Instructor Institution City/State Date Did the Rudd Government get the balance right with the Fair Work Act? Introduction The Australia’s federal state of employment laws has been ardently challenged and considerably amended in the short span of two election succession. According to Hubbard (2012, p.18) labour rights as well as industrial law have remained to be one of the decisive features of political victory along with grassroots activism drivers in current political history of Australia. In 2007, the Labour party under Kevin Rudd went to the election with its industrial relations policy termed as Forward with Fairness. Fells (2014, p.98) posit that this policy was introduced to Australian voters as a sharp counter to the Howard’s government legislation termed as Work Choices. Evidently, it was continually posited by spokespeople of labour party during the campaign trail that Howard’s Work Choices could be ‘ripped up’ and ‘entombed’. In passing the Fair Work Act 2009, the Rudd/ Gillard’s government introduced its new-fangled legislation as responsibly and fairly balancing the distinct and repeatedly differing interests of employees as well as employers in order to guarantee productivity goals that are financially viable as well as Australian interest. However, Stewart (2012, p.5) thinks that this issues presentation obscure the likelihood that whilst the Fair Work Act has necessitated a number of important alterations, together with a reinforcement of the safety net, it propagate some challenging aspects of the previous legislation (Work Choices). Part of such aspects is the compulsory inclusion of a flexibility clause in Enterprise Agreements as well as Modern Awards. This paper will critically examine if the Rudd Government get the balance right with the Fair Work Act. Critical Review In 2012, the Labour Party government under Rudd/Gillard made considerable amendments to for building and construction industry’s industrial relations regulation, considerably weakening the powers of the regulator. The changes according to Stewart (2012, p.7) extremely lowered the inspectorate’s compliance as well as enforcement powers and exhibited the illegal demeanour in the building and construction industry. The previously Australian Building & Construction Commission (ABCC) that was acknowledged as extremely effective was substituted by the modified Fair Work Building & Construction (FWBC). What’s more, the Fair Work (Building Industry) Act 2012 substituted the Building & Construction Industry Improvement Act 2005. Unfavourable amendments that decreased deterrents to illegal union activities entailed: decreasing maximum penalties for illegal behaviour from $6,600 per violation for persons as well as from $110,000 to $33,000 for companies (as well as trade unions) (MacCallum, 2013). Another amendment was reducing the regulator’s prosecutorial powers, blocking it from interfering in or instigating legal trial where other involved bodies to the conduct have decided. Another amendment was meant to undermining the provisions of anti-coercion with regard to creating, ending, changing or broadening industrial agreements, permitting coercive conduct to take place. Finally, the amendments were meant to weaken the autonomy of the inspectorate, with the then minister being in a position to direct the regulator concerning its priorities as well as program and how it carries out its activities. With additional anti-business amendments to Australia’s employment relations system lately enacted into law, the substitution of Kevin Rudd did almost nothing to reinstate business confidence that Labour party had promised in this vital policy area (Hubbard, 2012, p.19). In the Fair Work Amendment Act 2013, key provisions that of late came into law have not just shifted the Labour Government further outside its primary pledges of 2007 on workplace relations. However, it deprived of the wider economic effects of its workplace system as well as uncared for rising concerns in business concerning competitiveness, productivity, as well as Australia investment. Whereas it is at this moment apparent that Labour’s pledges in the lead up to establishing the Fair Work Act are actually broken and improbable to be corrected under the Abbott government, Fells (2014, p.99) maintain that the confidence of Australian business is as well affected by the same factual prospect of additional anti-business workplace regulation under the government. Kevin Rudd in 2013, after being sworn in as Australia Prime Minister, he failed to keep his promise to ‘closely work with the business community of Australia by crashing down the pro-union and anti-business amendment bills in the field of workplace relations. Unfair Flexibility The Fair Work Act according to Smith (2011, p.452) offers that entity flexibility bargains, which have to be the outcome of ‘legitimate’ agreement between the employee as well as employer, and it results into the worker being more contented in general, not associated with unpermitted or illegitimate issues and be in writing. Still, such are enormously procedural assurances given the unfairness that the majority of workers will endure in their association with their employer. Practically, such entity flexibility bargains have time and again worked in an unfair or one-sided manner with workers getting letters on mass, asking them to sign and take it back to their employers within a specific duration. Certainly there are no means for testing or oversight of whether an arrangement actually results to the entity worker being actually more contented in general: this is a lapse which makes McCallum (2008, p.25) think that Work Choices as well as its ‘fairness test’ apparently offers more protection to employees, in spite of its well-documented limitations. If the agreement arrived between the employee and employer violates any conditions under the Fair Work Act, the agreement can be terminated in no more than four weeks’ notice or through mutual agreement (Forsyth & Stewart, 2009). Increase of Labour Market Flexibility Given that the labour market flexibility demand has increased along with its competition, Freyens and Oslington (2013, p.297) affirm that there are enormous alterations in labour market participation as well as employment practice. One of the alteration is Australian businesses are restructuring the enterprises by making use of more casual workers to maintain the cost of labour at lowest. Since the hospitality products’ demand is extremely elastic, the quality of service turns out to be critical so as to get competitive advantage. Thus, the growing labour flexibility as well as productivity and declining costs of labour are the main financial concerns. Company managers search for numeric suppleness to handle costs of labour by matching the numbers of worker to fluctuations in demand for their services as well as products and therefore generating a firm need of casual employment. Sloan (2011) indicate that 70% of the hospitality employment is part time and casual workers and almost 50% of this group is dominated by foreign employees. In general, casual employment does not need much knowledge and therefore get low salary and have no eligibility to employment protection rights (Sloan, 2011). The majority of the hospitality and tourism companies in Australia operate throughout, and work in these companies is therefore attributed by the fact that it is the most substandard employment hours. In consequence, workers suffer financially as well as socially, and they find it difficult to balance their family as work responsibilities; thus, exhibiting the need of Rudd’s Fair Work Act. A number of the foreign employees are not aware of their employment rights, owing to their panic of being extradited or linguistic as well as cultural barriers; thus, they never complained publicly even when poorly paid or go unpaid, ill-treated, besmirched or coerced to work in unsafe conditions (Freyens & Oslington, 2013, p.301). Therefore a number of Australian small business owners could exploit them with regard to pay as well as conditions. These days, workers are more alert of the significance of work-life balance as well as their rights; thus showing the urge of Fair Pay in addition to life-work balance, which compelled Rudd’s government to negotiate with hospitality stakeholders as well as unions (Gahan, 2012). Subsequent to the lengthily consultations, Rudd’s government afterwards created the Fair Work Act to encourage fairness as well as balance in place of work by offering fair and wide-ranging safety net for the workers and improve business productivity. A few fundamental aspects of the workplace relations system introduced by Rudd’s government consisted of: a system rooted in bargaining at the company level; security from inequitable sacking for workers; a balance between family as well as work life, the safety for the underpaid; and the employee right to join trade union (Sloan, 2011). Another ten extra National Employment Standards as well were enacted in the beginning of 2010, which included requirements for flexible working arrangements, yearly leave, maximum working hours per week, and so forth. Every Australian business was required to review their employment remuneration as well as policies to make sure they fall in proportion to the Fair Work Act. Besides that, Fair Work Ombudsman until now plays a crucial part in ensuring migrant employees can as well access the similar basic protections as well as rights as Australian employees (Forsyth & Stewart, 2009). Why was Rudd Wrong Whereas Kevin Rudd had acknowledged the Fair Work Act strikes were a good balance for employment, industry discarded his assertions unequivocally and said there is still extra work to be completed (MacCallum, 2013). Rudd posited that Australia’s industrial relations system was well functioning, and that productivity of the labour had heightened than the era of work choices. Freyens and Oslington (2013, p.299) claim that the present employers have to act as the paymasters for both maternity as well as superannuation leave payments. Therefore, any amendment to the Fair Work Act must mend this setup. According to McCallum (2008, p.27), Australian employers require something in this area that is simple to comprehend and cares for all and sundry. Besides that, the hospitality as well as retailer employees have been demanding for amendments to the penalty rates regime for years now, but Fells (2014, p.99) believe that this is not just about penalty rates, since they wish for the working week structure to be altered. Hereby, the workers must be in a position to work for five days between Monday and Sunday, and therefore Sloan (2011) thinks that employees should stop talking about unsociable hours. Also, opening hours has remained to be an enormous issue in the midst of retailers, even though not strictly under the jurisdiction of Fair Work Act, Gahan (2012) says some reasonable synchronisation across Australia must be introduced. Basically, the hours for shopping have changed, and Australians desire to do their shopping later in the evenings, but once a retailers open past six, they are required to pay an additional 25 percent; therefore, MacCallum (2013) wonders who will be willing to open late to pay the extra cost. Furthermore, scores of complaints with regard to the Fair Work system have increased tremendously, and according to Soan (2011) this is based on how complaints as well as hearings are prearranged. Hubbard (2012, p.19) says there has been advancement in this area, but still must be enhanced. In the past, the Fair Work Commission used to examine complaints processing around small enterprises, where in case a person makes a complaint he/she was required to go to a hearing, but at the moment there is testing with fundamentally triaging complaints. Basically, enterprises are crucial of penalty rates, and Forsyth and Stewart (2009) posit that the entire penalty rate system must be overhauled, and the recent endeavour to widen adult remuneration to teenagers must be discarded. Conclusion In conclusion, it has been argued that the Fair Work Act came in as an effort to generate a more national system for regulating Australia industrial relations. Plainly, the Fair Work Act marks an essential alteration in the way of bargaining arrangements in the Australian milieu. Basically, it has been observed that bargaining will be rooted jointly at the business level, contrary to the highlighting on entity agreements, which was promoted in the Howard government. Integral to the Rudd legislation is the theory of good faith bargaining, which highlights the needed of bargaining parties conduct during negotiations. Notably there is no data concerning the connection between the utilisation of the Fair Work Act as well as engagements in productivity. However, what remains clear as discussed in the paper is that it is impossible to heighten productivity just by altering the nature of industrial regulation. References Fells, R., 2014. Rediscovering Collective Bargaining: Australia's Fair Work Act in International Perspective - Edited by B. Creighton and A. Forsyth. Industrial Relations Journal, vol. 45, no. 1, pp.98-99. Forsyth, A. & Stewart, A., 2009. Fair Work: The New Workplace Laws and the Work Choices Legacy. Sydney: Federation Press. Freyens, B.P. & Oslington, P., 2013. A First Look at Incidence and Outcomes of Unfair Dismissal Claims under Fair Work, WorkChoices and the Workplace Relations Act. Australian Journal of Labour Economics, vol. 16, no. 2, pp.295-306. Gahan, P., 2012. Fair Work Act, productivity and the balancing act between bosses and workers. [Online] Available at: http://theconversation.com/fair-work-act-productivity-and-the-balancing-act-between-bosses-and-workers-8609 [Accessed 7 May 2014]. Hubbard, L., 2012. Fair Work Act needs more work. The Lamb, pp.18-19. MacCallum, M., 2013. The Mad Marathon: The Story of the 2013 Election. Sydney: Black Inc. McCallum, R., 2008. Australian Labour Law and the Rudd Vision: Some Observations. The Economic and Labour Relations , vol. 18, no. 2, pp.23-32. Sloan, J., 2011. Many costly, crippling flaws in the not so Fair Work Act. [Online] Available at: http://www.abc.net.au/unleashed/2797914.html [Accessed 7 May 2014]. Smith, B., 2011. What Kind of Equality Can We Expect from the Fair Work Act? Melbourne University Law Review, vol. 35, no. 2, pp.545-77. Stewart, A., 2012. Australian Labour Law in Transition: The Impact of the Fair Work Act. New Zealand Journal of Employment Relations (Online), vol. 37, no. 1, pp.3-21. Read More