Fair Work Australia - Regulation of Workplace Bargaining - Case Study Example

Fair work Australia Name of the Student: Name of the Instructor: Name of the course: Code of the course: Submission date: Fair work Australia Introduction It is an apparent fact that the imperative role of workplace bargaining between the employees, their representatives and the management has gained elevated prominence in the recent decades. This according to Salamon (1987) can be perceived as the mechanism aimed at determining the terms and conditions of employment. This method usually uses extensive processes of agreement and negotiations and affords a formal channel through which the divergent interests of the employees and the management can be resolved. This phenomenon has been evident in Australia, mostly after the institution of Fair work Australia. This institution instigated its operations on July, 1st, 2009 and became fully functional in January, 1st, 2010. It was established under the Fair Work Act of 2009 and mandated with the responsibility of overseeing the new system of workplace relations. It is also worth noting that this institution is an autonomous body which undertakes other roles related to industrial action, the safety net of minimum wage and employment conditions, resolution of disputes, enterprise bargaining, termination of employment among other diverse issues which are related to the workplace environs (Fair Work Australia Website, 2013). All these roles play a principle role in the promotion of cooperative, harmonious as well as productive engagements in the Australian workplaces. Against this background, this paper is a profound effort to explore the present role of Fair Work Australia (FWA). It will however give particular attention to the role of FWA in relation to the regulation of workplace bargaining between employees and their representatives and the management. Some of these roles are analyzed in the subsequent section. Regulation of workplace bargaining Bray et. al. (2011) noted that since the 1990s, the processes of collective bargaining have experienced extensive changes and has evolved into becoming core to the collective rule-making processes in Australia. This process was particularly fortified with the legislation which instituted Fair Work Australia, commonly referred to as Fair Work Act 2009. The instigation of the obligation for the representatives to bargain in good faith under the Australian Labor Law, more specifically in the Fair Work Act 2009 has elicited a wide alley of commentary and analysis from both the scholars and practitioners. This is geared towards seeking more profound and precise clarifications regarding what such obligations mean to both the employers and the workers unions. Most of this commentary has extensive drawn a comparison between the Australian obligation, which is presently enshrined in the Fair Work Act 2009 with the good faith bargaining obligations in the North American and New Zealand law (Riley, 2011). Nonetheless, despite these commentaries, it is imperative to note the bargaining processes in the Australian workplaces which are under direct regulation of FWA are aimed at the promotion of productivity among the employees, elevating the level of cooperation and fairness which is achieved through a more profound emphasis on enterprise level collective bargaining (Commonwealth of Australia, 2013). This is usually founded on simplistic good faith in regard to the bargaining obligations as well as clear rules which are central in the regulation of industrial action. In this way, bargaining is perceived as a mechanism geared towards fostering a transformational culture in the workplace and thus an esteemed tool in the processes destined for continuous enhancement of the workplace operations (Commonwealth of Australia, 2013). According to the Commonwealth of Australia (2013), this fundamental role which is undertaken by FWA is imperative in improving the level of performance and efficiency in the Australian workplaces. This is usually through the establishment of flexible and responsive enterprises in the country. Additionally, it has been noted that this outcome of heightened productivity is greatly beneficial to all the stakeholders in the workplace. To the employees, it has been cited that higher productivity plays a key role in the provision of higher wages for the workers as well as increasingly satisfactory work. Thus, it is imperative in not only elevating the motivation of the employees and increasing their commitment to their workplace but also in impacting on the increase of their wages. To the employers, the high performance of the workplace which emanates from the efforts towards collective bargaining results in higher profits margins as the output of the employees increases. This is imperative in supporting diverse operations of the firm, for instance, expansion and diversification of the portfolio, hiring more skilled and knowledgeable human resource as well as supporting different logistics like transport and telecommunication at the organizational level (Commonwealth of Australia, 2013). The role of bargaining which is undertaken by FWA has also been viewed to be beneficial to the general public. This is whereby they are able to get high quality and lower priced goods and services from the workplace (Commonwealth of Australia, 2013). This can be founded on the fact that the employees are continuously committed towards innovation and creativity towards the production of high quality products which suits the specific needs of the consumers. FWA plays a key role in the regulation of these bargaining processes. This is best epitomized by the fact that in case one of the bargaining partners have a justifiable feeling that another representative in the bargaining process is failing to meet the ‘good faith’ requirement during the bargaining procedure, the aggrieved party might apply for a ‘bargaining order’ from the Fair Work Commission. This action might be preceded by the fact that the bargaining process might not be progressing in an efficient and fair manner or maybe there are too many agents in the bargaining process who are bound to impede the efficiency and effectiveness of the entire process. Nonetheless, it is imperative to note that the aggrieved party ought to serve the other parties with a written notice of his/her concerns, coupled with a sensible chance to give a response to them before proceeding to apply for a bargaining order (Commonwealth of Australia, 2013). This bargaining order which is sought from the Fair Work Commission outlines what all the parties ought to do in order to ensure that there is fairness in conducting the bargaining processes. In a scenario of severe breach of this bargaining order and there is a probability that an agreement will not be reached between the parties, then the Fair Work Commission has the power to make a workplace determination related bargaining which outlines the terms and conditions of employment which will be applicable to all the parties (Commonwealth of Australia, 2013). The above fact is supported by Bray et. al. (2011) who determined that in a situation where any of the representatives in the bargaining process fails to comply with the requirements of bargaining in good faith, then another representative is usually free to seek a ‘bargaining order’ from FWA through the Fair Work Commission. The subsequent failure to exhibit compliance with the bargaining order can culminate in penalties or further court orders. Thus, the undertaking of Fair Work Commission through the larger institution of FWA to issue bargaining orders and in some instances making workplace determinations which are related to the bargaining process can be viewed as a key role in regulating the overall bargaining process in the Australian workplaces. Nonetheless, it is plausible to note that the Fair Work Commission is not empowered to make such a determination in a situation where all the parties are adhering to the best practice principles and have exhibited extensive commitment towards good faith bargaining (Commonwealth of Australia, 2013). Additionally, in a situation where an employer refuses to participate in the bargaining process, the representative of the employees, who is mostly but not always the union can also proceed to seek a ‘majority support determination’. In a situation where FWA becomes extensively satisfied that most of the employees in a given workplace who are under the cover of the proposed agreement wish to bargain, then FWA can issue a determination compelling the employer to engage in the bargaining process. Any failure to bargain in good faith on the part of the employer can result in the issue of a ‘bargaining order’ aforementioned above (Bray et. al., 2011). Thus, this analysis exhibits that FWA has elevated power to engage in the regulation of the bargaining processes in the Australian workplaces either through direct consent from the parties involved, and in some cases, issuing compulsory determinations. This fact is supported by Stewart (cited by Bray et. al., 2011) who determined that there many ways through which FWA can actively get involved in enterprise bargaining, both through the consent of the involved parties and sometime compulsorily in rare occasions. Industrial action This is yet another role which is undertaken by FWA which is related to bargaining. The Fair Work Australia Website (2013) perceived industrial action to take different forms. Some of the most notable ones include striking whereby employees refuse to perform any work or decline to go to work altogether. Another industrial action can be through the imposition of bans where the employees refuse to undertake all their normal duties and lastly the employees might lock out their employees thus refuse to allow them to undertake any work or to pay them. However, it is imperative to note that this industrial action often takes place with some sought of immunity from prosecution under both the state or territory law. This is often referred to as ‘protected industrial action’ (Commonwealth of Australia, 2013). In this case, the Fair Work Commission plays a critical role in making sure that the bargaining process and any industrial process which is linked to these processes are conducted in accordance with the existing laws. Therefore, the representatives in the bargaining process who wish to engage in an industrial action aimed at fortifying their claims are obliged to first seek an order from the Fair Work Commission. This is aimed at affording them with a protected action ballot which authorizes the industrial action (Fair Work Australia Website, 2013). However, it has been noted that the process of bargaining in good faith which is regulated by FWA as well as the maintenance of open communication has a great likelihood of culminating in the parties successfully arriving at a mutual agreement without the need of engaging in an industrial action. Thus, the capacity of FWA towards successful completion of coordination and regulation of the bargaining processes in Australian enterprises and eventual agreement between the parties has been credited for averting major industrial actions in the country. In situations where enterprise agreements are in place after successful bargaining process, then industrial actions cannot commence prior to the expiry date of the agreement (Commonwealth of Australia, 2013). In the event where an unavoidable industrial action takes place, then the Fair work Commission is endowed with the power of suspending or terminating protected industrial action. In addition, the commission might also make orders geared towards halting or preventing unprotected industrial action. Such nature of orders is enforceable in the courts of law in Australia (Fair Work Australia Website, 2013). The rules and regulations which govern industrial action under the Fair Work Act of 2009 are borrowed from Work Choices. Indeed, McCrystal (cited by Bray et. al., 2011) cited these regulations of industrial actions which were continued by FWA as being a ‘new consensus between the labor party and the coalition’. Nonetheless, McCrystal (2010) determined that there are some aspects of the Fair Work Act which were modified the approach which had previously been taken by Work Choices. Of particular concern, the restriction of employer protected industrial action to ‘response’ action played a key role in bringing Australia in line with the OECD mainstream with respect to employer industrial action. This is founded on the backdrop that very few of countries in the OECD region allow employers to engage in ‘offensive’ lockouts (Briggs, 2005). Additionally, the Fair Work Act further extended the ‘matters pertaining’ requirement to the relationship between employers and unions. This has the potential of opening up new frontiers for agreement making (McCrystal, 2010). In this case, FWA has the capacity of regulating the bargaining processes between the representatives and avert any possible industrial action. This has the potential of enabling the parties in the bargaining process to reach an agreement which as previously mentioned is an ideal way of establishing harmonious and productive workplaces in Australia. Lastly, it is imperative worth noting that Fair Work Commission can also render its assistance in the process of dispute resolution involving the employers, the unions, employees and the employer associations who are encompassed in the national workplace relations system. In this case, FWA can initiate and regulate negotiations and bargaining process which have been instituted to resolve the disputes from the aforementioned stakeholders. The competence of the members of the Fair Work Commission is founded on the backdrop that members of this commission have a wide alley of experience in dispute resolution techniques which include mediation, conciliation and arbitration (Fair Work Australia Website, 2013). Conclusion It is apparent from the preceding analysis that workplace bargaining between the employees, their representatives and the management gained increased competence in the recent times. This has been evident in Australia with the institution of Fair Work Australia which plays a key role in the regulation of bargaining process. This is central to the roles of FWA of regulating enterprise bargaining, industrial action and dispute resolution, all of which have been explored in the preceding sections. This has been perceived as being an important role in the betterment of the employment conditions of employees in Australia in terms of better wages and good working conditions among other aspects. References Bray, M., Waring, P., & Cooper, R. (2011). Employment relations: Theory and practice, 2nd ed. Sydney: McGraw-Hill. Briggs, C. (2005). Lockout law in a comparative perspective: Corporatism, pluralism and neo- liberalism. International Journal of Comparative Labour Law and Industrial Relations, 21(3): 481–502. Commonwealth of Australia, (2013). Best Practice Guide: Improving workplace productivity in bargaining. Retrieved April, 23rd 2013 from http://www.fairwork.gov.au/BestPracticeGuides/11-Improving-workplace-productivity-in-bargaining.pdf Fair Work Australia Website (2013). Retrieved April, 23rd 2013 from http://www.fwc.gov.au/ McCrystal, S. (2010). Protected Industrial Action and Voluntary Collective Bargaining Under the Fair Work Act 2009. The Economic and Labour Relations Review, 21(1): 37–52. Riley, J. (2011). Bargaining Fair Work Style: Fault-lines in the Australian Model. Labour Law Conference, Wellington: Victoria University. Salamon, M. (1987). Industrial Relations Theory and Practice. London: Prentice Hall. Read More