The Role of Australian Industrial Relations Commission in Work Choice Act 2005 and Fair Work Act - Essay Example

Running Head: Compare be the role of AIRC in Work Choice Act 2005 and Fair Work Act Compare be the role of AIRC in Work Choice Act 2005 and Fair Work Act Name Course Lecturer Date Introduction The Australian Industrial Relations Commission (AIRC), throughout the 20th century did play a major role in the country in the industrial relations system. Its central role as specified by the Conciliation and Arbitration Act 1904 was essentially to settle all industrial disputes through arbitration and conciliation. The decisions of the High Court and the 1904 Act expanded the role and power of the AIRC. In addition, it was awarded the duties of registering industrial organization, awarding the organization elite jurisdiction over portions of the workforce therefore, and resuscitating union movement. AIRC also determined legally the minimum terms and the conditions that were related to employments. It is also important to note that the role of AIRC, in the late 1960s and 1970s, was much circumscribed. However, it did play a central role in the industrial relations and it was a third party to the relationship of employment. The last decade of 20th century characterized a great challenge to the role of AIRC. One of the results of these challenges was the formation of the Work choices Act in 2005. The act was significant in changing the industrial law in the country. Under this act, the functions and roles of AIRC were greatly altered though some roles were maintained. Some of the functions that are not with AIRC include; certification of agreements, certificates mostly in relation to action in the civil and contents of awards. A new workplace system was then designed to give a balance between the employers, employees and the unions. This is system is known as Fair Work. It took full effect on January 2010. Fair Act was established to oversee that the employees and employers have a positive balance in the workplace. Fair Work Australia was also created to focus on providing effective and fast assistance for employees and employers. The Act has indeed created a new industrial relation umpire in Australia which operates as a point of handling all matters that are related to industrial action in Australia. Most critics view the Fair Work act as a major safety and stronger net compared to the Work Choice Act, that employees and employers can rely on both in risky and good economic times. There are major differences between the role of AIRC in Work Choice and the Fair Work Act. Fair Work Act, the most recent; have created better working conditions in the work place compared to the former. Roles of AIRC under in Work Choice Act 2005 In setting the Work choice 2005, the roles of Australian Relations Commission changed in order to keep pace with the requirements of the modern economy. AIRC continued to focus on dispute resolution, as a key responsibility. In addition, rationalize and simplify awards and regulating actions in the industries, unfair dismissal, and right of entry and register organizations. However, in the case of settling disputes, the parties are to confer the disputes to AIRC. Still, AIRC was mandated to give voluntarily dispute resolution service which was different from the previous Act whereby it was compulsory for the disputes resolutions to be made by the AIRC. The role it played in providing a primary conciliation services for claims on termination was retained by the AIRC (Wooden, 2001). In the industrial action, the employees need to notify the employer; their action need to be authorized, have a secret ballot order from the commission and should have secured almost 50 percent of the votes. Therefore, AIRC provides or grants orders for secret ballots to take place and endorse the action. AIRC may also order to stop industrial action if the action is unprotected, damage or loss likely to result to action by the employees in the non-federal award, the decision is not made within 48 hours or an interim order is not issued. Under the awards, the AIRC is responsible for both state and all federal awards that are part of the national system. However, the commission cannot establish new awards but may do so under limited circumstances. Basically, under Work Choice Act the AIRC is expected to exercise impartiality and independence, have timely, inexpensive and flexible processes, acquire industry knowledge and expertise, be accessible and maintain their focus on the needs of the parties and have a national coverage of its activities. Roles of Fair Work Act It was essentially designed to balance the needs of the unions, employers and employees. It has led to creation of excellent workplace relations between the employers and employees. It actually provides a safety and strong net for the employees in Australia. One of the roles of Fair Work is to provide a comprehensive and fair safety net of all minimum employment conditions. The safety net has two parts- new modern awards a ten National Employment Standard. Under this role, the National Employment Standards has ten legislated conditions for employment that do cover essential conditions for example public holidays, notice of redundancy pay and termination, leave, working hours and a right to flexible working arrangements. Award modernization has brought in novel modern industry and awards based on occupation, simplifying and streamlining hundreds of awards to 122. Every modern award would be reviewed after every four years to maintain a fair and relevant minimum safety net and to ensure that the community’s needs are met. In addition, the minimum wages would be reviewed annually (Wooden, 2001). Collective bargaining at enterprise level is another role played by Fair Work. In this, an enterprise agreement is made between the employees and employer. An enterprise agreement can be successfully been create in the work place. In cases where the employer does not accept bargain and agreement does not exist, the Fair Work act is applied. Its main role is to determine whether the employees have a majority in the negotiation for an enterprise agreement. This is mainly done by the Fair Work Australia. If a majority supports the enterprise agreement then the employer must go bargain for the wellbeing of the employees. Under the Fair Work systems, there is no difference between non union and union agreements. The system therefore, allows the employees to have a collective responsibility in the work place and leading to balance of the activities seen in the work place. It ensures that bargaining occur in good faith (Dabscheck, 2001). Fair work system does provide the requirements needed in the Greenfields agreement. It ensures in the employees’ organization, that the agreement will cover, have all the requirements that are needed to ensure that the interests of all the employees are considered. In addition, it has to ensure that the agreement is approved in the interest of the public. The Fair Work system has also a responsibility of creating a bargaining assistance for the employees who are low paid. This stream assists the employees who have lost benefits in the past. It facilitates creation of agreements and gives a hand in getting the parties to bargain. Clearing tough role on the industrial action is another role played by the system. Under this, employees can always take protected advance claims at the time of collective bargaining. Industrial actions are protected when initiated by the employers. However, the action has to be authorized by a secret ballot and should also meet the requirements set by the Fair Work system (Australian Government, 2009). Other roles played by Fair Work system include protecting the employees from unfair dismissal. This is mostly applies to the employees of small businesses. However, dismissal would be unfair if there is genuine redundancy; creation of a balance between family life and work. The Fair Work system gives provision such as enterprise agreement and modern awards. The National Employment Standards does increase the amount of unpaid leave for parents, provide flexible working arrangement; right of entry to union and assist in the transfer of business. Differences between Role of Fair Work Act 2009 and Work Choice Act 2005 Differences in the National Employment Standards Of importance, is the fact that are five similarities observed in the Fair Work Act and Work Choice under the National Employment Standards. These include; annual leave, parental and personal leave, maximum working hours, annual leave. The rest of the standards are different and they include the following; In the case of parental leave, according to the Fair Work system, an employee is entitled to have a 12 months’ leave after adopting a child who is up to 16 years or give birth. A parent may request for unpaid leave of 24 months. However, giving reasonable grounds, an employer may refuse the request. Still, those employees in the small business are entitled to unpaid leave. A parent is entitled to go back to the position they held before having their leave. In case the position does not exist, they should be considered for the position that is related to the previous work. In the Work Choice Act, new fathers or mothers would only take almost 52 weeks unpaid leave as a primary care. In addition, same-sex relationships were never recognized and given parental leave while parents for adoption were only considered if the child was below the age five (Boulle, 2002). In the case of the flexible hours, under the roles of the Fair work system, parents having children under the age of 18 may request for flexible working hours arrangement. These include working patterns, hours or working locations. However, the employees should have worked for about 12 months. The role of Fair Work system, in this case is to mediate over the issues if any disputes may arise with the employer. In the Work Choice act, it does not provide a role in protecting the right to request flexible hours for the employees (Riley, 2010). Under the community service leave, Fair Work Act is responsible to ensure that the employees have right to unpaid leave for any voluntary emergency activities and jury leave of up to 10 days would be granted. Similarly, in a compassionate leave, an employee is also entitled to 10 days-paid leave that accumulates. On the other hand, Work Choice Act does not cover the casuals and only provides a yearly limit of ten days paid leave for carers. The Fair Work system offers employees protection from unfair dismissal from their work place. The system emphasizes on the fact the employees need o bee given notice of termination. The AIRC, however, are to continue handling the claims. The difference between the Fair Work Act and Work Choice is perceived on the procedures and application of the claims the current procedures in the Fair Work act see to it that there is no written submissions, cross-examination of the witnesses should not take place, and no formal hearing (Giudice, 2002). Differences in the Modern Awards Few differences have been observed between the two acts in the modern awards. For example, in case of right of entry, most of the provisions are similar in both. However, a key difference is seen which does explain that the right of entry is at present linked to union’s right to represent the interest of the relevant employees in Australia, rather than applying an agreement or award. The unions are expected to comply with the conditions as seen in the entry and hold a permit that does comply with the needs set for the site. Minimum wages variations are present in the modern awards as perceived in the Fair Work act. However, in the Work Choice, they are significantly absent and vary. Fair Work Act plays a role in revoking the minimum wages but must take account of the national minimum wage order. Fair Work Act has also introduced the modern enterprise which somewhat differs from the modern award in the Work Choice Act. In addition, in the Fair Work Act, they are reviewed after every four years. Nevertheless, both acts have covered the employees and employers of the organization. Changes made by Rudd/Gillard Government In the 2007 election in Australia, Labor party under Julia Gillard and Kevin Rudd advocated for fairness in the industries and other areas of employments. They mainly advocated or campaigned against the Wok Choice legislation that had been presented by the former government in their election campaign, they had promised to tear and bury the Work Choice legislation that was seen not create a balance between the employers and employees in the working place. There are reasons that led to the changes of the Australian employment law when the Rudd/Gillard came to power. The government wanted to establish a fair and responsible balance between the employer and employees so as to reduce conflict of interests. This of course would result to increase in economic productivity. The need to restore fairness in the dismissal laws for companies that had less than 100 employees hastened the changes too. The changes also saw the rise of Fair work Australia which replaced the Fair Pay Commission in the Howard Government. The Fair Work Australia has continued to play significant roles in ensuring the balance in the work place is maintained (McCallum, 2007). Changes were also done to ensure that the rising level of restricting the employees’ right of entry to the work place was prevented. This also gave the workers the right to air their grievances and organize strikes and boycotts. The government wanted to pave way for excellent parental leave that would ensure that parents do not have a hard time in the upbringing of the child as a result of massive job requirements. The women, in particular, were the main victims of the previous employment legislation and the government had to amend the laws to bring great benefits to the women in the work place (Astor and Chinkin, 2002). The government saw that there was need to create more jobs opportunities by streamlining the Australian Law on employment. In fact, most jobs have been created and half of these are full time. This has therefore, led to the decline of unemployment in the country. The government established the changes to try and recover the country from the global financial crisis which the country had fallen at that time. The country is said to have gained massive profits as a result of increased productivity of the labor and good wages given to the employees. The employment laws in Australia have had various since the 20th century and various commissions have been sent to ensure that the changes are maintained. The Australian Industrial Relation Commission (AIRC) had roles in ensuring that some set regulations in the employment. However, its roles drastically declined with the establishment of the Work Choice act which brought in some positive changes in the work place. This was then followed by the Fair Work Act which was established to create a balance between the employer and employees in the work place. Major differences are observed in the between the two acts that were applied by different governments. Rudd/Gillard government had to establish the Fair Work act in order to bring positive changes especially to the economy of Australia. Several positives changes were observed as a result of these changes. References Australian Government, 2009. Australia’s Fair Work System, Sydney. Astor, H. and Chinkin, C. (2002). Dispute Resolution in Australia. Sidney: LexisNexis Butterworths Boulle, L. (2002). Laws of Australia, Dispute Resolution, Vol. 13, Sydney: Law Book co. Ltd Dabscheck, B, (2001). “The Slow and Agnonising Death of the Australian Experiement with Conciliation and arbitration,” Journal Relations Giudice, G. (2002). “Our Industrail Realtions System: what Makes it Unique?”Sydney: Sydney Institute McCallum, R. (2007) ‘Australian Labour Law after the Work Choices Avalanche’ Journal of Industrial Relations 436, 438-440. Riley, J. (2010) transfer of Business under the Fair Work Act, Sydyney law School Legal Studies Research Paper. Wooden, M. (2001). “Industrial Relations Reform in Australia: Causes, Consequences and prospects,” The Australian Economic Review. Read More