Objectives of the Fair Work Act 2009 - Essay Example

Employment Relations Name Course Instructor Date Introduction An understanding of employee relationships is achievable through the application of the neo-institutionalism approach. It enhances an understanding of how rules embodied in social, political and economic systems impact, influence and account for shifts in employee relations, (Kaufman 2004). Thus, the core of the neo-institutionalism approach to employee relations is the impact of rules. Neo-institutionalism not only helps to answer the question of how, but rather why such relations exist. Rules underlie the relationships that exist between employers and employees. They also affect their behavior and the extent to which each party is expected to act and explain the observable trends of employee relations, (Wilkinson, Vood & Deeg). For instance, Australian labor relations have undergone profound changes during the past decade, an observation that can attributable to the Work Choices amendments and the Fair Work Act 2009 (Cth), (Mitchell et al. 2010). Objectives of the Fair Work Act 2009 The enactment of the FW Act was with the expectation that it would restore fairness and enhance the workers’ voice and participation at the workplace, (Barnes & Lafferty 2010). The primary objective of the FW Act was to render a poised legal framework for cooperative and productive workplace relations, (McCallum, Moore & Edwards 2012). It envisaged achieving this objective through provisions that promote collective enterprise bargaining with the support of envisaged safety net comprising the National Employment Standards (NES), minimum wages and modern awards, (McCallum, Moore & Edwards 2012). Positive Outcomes as a result of the enactment of the Fair Work Act 2009 A number of positive outcomes have resulted out of the enactment of the FW Act. First, there is an enhanced legislation of minimum terms and conditions of employment through legal provisions for maximum weekly hours of work and paid leave for workers, (McCallum, Moore & Edwards 2012). In addition, there is an enhanced bargaining framework to facilitate multi-enterprise bargaining for disadvantaged workers in low-paid, (McCallum, Moore & Edwards 2012), which was notably absent in previous labor regimes. As a result of its enactment, there is a trend towards greater gender equity at the workplace, (Sharp, Broomhill & Elton 2012). FW Act gives powers to Fair Work Australia (FWA) to debar or terminate protected industrial action where it compromises the safety of both employees and employers or third parties. The FW Act also aimed at advancing employee rights and entitlements as well as elevating the scope of employee unionization and collective bargaining at the workplace, (Barnes & Lafferty 2010). The FW Act offers employees alternative remedies in cases of workplace discrimination to those already provided by anti-discrimination legislation, (Rice & Roles 2010). It provides multi-enterprise bargaining as well as agreements for greater and beneficial collective bargaining outcomes, particularly for the disadvantaged groups of workers, (Barnes & Lafferty 2010). Negative Outcomes as a result of the enactment of the Fair Work Act 2009 Correspondent to the positive outcomes of the enactment of the FW Act, there are also notable adverse outcomes of its enactment. For instance, there is increased union power and an evident adverse modification in union culture and behavior due to the enactment of the FW Act, (Australian Industrial Group 2012). The Act has no provision for individual statutory agreements, instead championing for collective enterprise agreements, with the provision for making individual employee flexibility arrangements, (McCallum, Moore & Edwards 2012). Secondly, the Act prohibits multi-enterprise industrial action taken in support of pattern bargaining by providing for only enterprise level industrial action, (McCallum, Moore & Edwards 2012). It limits an employer’s capacity to lock out employees to where the action is in response to an employee industrial action. The Act also fails to make provisions for employer Greenfield agreements instead providing for employee Greenfield agreements, Australian Industry Group (2012). Furthermore, the FW Act fails to address the issue of inequality in power relations between employees and employers, (Barnes & Lafferty 2010). The absence of unions should not be declarative of the absence of absence of employee voice. However, unions have been found to create an enabling environment to express individual and collective concerns since they provide assurance of a safe mechanism to articulate employee concerns, whether individual or collective, (Barnes & Lafferty 2010). The promotion of worker’s voices in the workplace is particularly important in egalitarian societies whereby there is a need to protect the concerns of vulnerable employment groups, (Bogg, Forsyth & Novitz 2013). However, they also note that trade union membership is not a prerequisite for enhancing employee voice in the workplace, but rather the legal and institutional context of exercising that voice. There is a relationship between political ideologies and labor relations in the Australian context. Whenever there arise a public contestation of political ideologies concerning labor laws that influence labor relations, there is a potential rupture of the institutional and regulatory environments, (Bogg, Forsyth & Novitz 2013). The compulsory conciliation and arbitration mechanisms provided in the Fair Work Act 2009 and its predecessors characterize the Australian labor relations regulatory environment, (Bogg, Forsyth & Novitz 2013). The enactment of the FW Act has had significant implications on the role of trade unions as labor law enforcement agents. There has been a significant evolution of the labor law enforcement environment in the aftermath of the enactment of the FW Act. For instance, the Act has created a well-resourced and powerful FWA and Fair Work Ombudsman labor inspectorate organs whose effect has been a compromise of union law enforcement capacity, (McCallum, Moore & Edwards 2012). In addition, its new focus is reoriented towards promoting harmony and cooperation in the workplace. Notably, the FWA is empowered to prosecute not only the employers who breach the labor laws, but also the trade unions that breach the FW Act provisions, (Landau et al. 2014). Significant changes have taken place in the Australian federal labor system. They include the imposition of restrictions on the trade union’s functions whose consequence is the relegation of trade unions from partners in labor law enforcement to junior partners, (Landau et al. 2014). Discussion The provisions of the FW Act have had a significant impact on employee relations processes and inspectorate institutions. Collective employee bargaining for enterprise agreements enhances both union and non-union forms of their collective voice. Following the enactment and subsequent implementation of the Act, it has become inevitable that there are some employee relations issues that it partially addressed or utterly failed to address. Hence there is a need to review it with the intentions of making amendments to revamp the laws to enhance its efficacy in addressing a number of identified problems and issues. The FW Act gives workers the right to organize protected industrial action against employees who fail to address reasonable employee concerns as provided for in the law. The modification of the Australian Labor system from conciliation and arbitration dispute resolution system to an enterprise bargaining system is attributable to the enactment of the FW Act, (Landau et al. 2014). The Act compromises the regulatory and enforcement role of unions. The Act has also re-collectivized the labor relations framework in Australia through its provisions that promote enterprise bargaining rather than individual employment agreements. The consequence has been that many employees feel that workplace flexibility is significantly undermined, (Australian Industry Group 2012). Notwithstanding the fact that the FW Act offers alternative frameworks for seeking remedies to complicated anti-discrimination laws, there are concerns that its provisions are at times compromised and ambiguous hence limiting its effectiveness in promoting fairness at the workplace, Rice & Roles 2010). The Fair Work Act has partly succeeded in ushering in a new form of labor relations at the workplace, underpinned by good-faith workplace relations and enhanced support for collective bargaining, (Barnes & Lafferty 2010). It has, however, failed to support the challenges presented by persistent workplace-power imbalances and an inadequate support for employee participation and voice at the workplace effectively. The consequences of such shortcomings are the existence of inexpedient workplace relations characterized by perpetual industrial actions, unfair dismissals and inappropriate working conditions. Notably, there are some provisions in the Act that have specially enhanced gender equity at the workplace. Such rules include new laws that provide entitlements and rights that render employment relations benefit to women, (Sharp, Broomhill & Elton 2012). They include extended safety net provisions, enhanced vulnerable workers’ protection against discrimination based on gender, race or nationality. Trade unions have relied on some of the Act’s provisions to oppose or interrupt workplace arrangements that they consider fair to both employees and employers, (Australian Industry Group 2012). Provisions such as the abolishment of the voluntary bargaining system in the FW Act underlie the diminishing productivity and workplace flexibility in Australia. There is widespread criticism of the Fair Work Act in relation to the employee right of engaging in a protected industrial action. The FW Act exhibits double standards as it limits protected industrial action to an organizational level. Hence it curtails its very provisions of promoting voluntary collective bargaining that may include multi-enterprise industrial actions organized by unions, (McCallum, Moore & Edwards 2012). The Act gives FWA powers to debar or terminate industrial action. Some labor activists have interpreted such powers to imply a desire to limit industrial action at the workplace. The act fails to address the ever-present managerial prerogative commonly observed at the workplace due to power relations inequalities, (Barnes & Lafferty 2010). Managerial prerogatives undermine the fair treatment of vulnerable employees at the workplace, a manifestation of flawed employee relations such as the exposure to deplorable working conditions with little pay and no union representation. Conclusion Australian labor relations have undergone profound changes particularly during the past five years, an observation attributable to the FW Act. The outcomes of the enactment of the FW Act have been both positive and negative. The positive outcomes have enhanced employee relations at the workplace whereas the adverse outcomes seem to create arduous employee relations. There is need to amend the identified controversial provisions in the Act. This will enable the achievement of beneficial employee relationships that promote the underlying objective of enacting the Act which is the need to achieve a poised legal framework for cooperative and productive workplace relations. Contentious issues such as inequitable power relations that underpin employee discrimination, provisions on protected industrial action, multi-enterprise industrial action, and collective enterprise bargaining as well as individual enterprise agreements require immediate address for better workplace relations. References Australian Industry Group 2012, Removing the barriers to flexibility and flexibility: submission to the Fair Work Act Review. Viewed September 5, 2014, Barnes, A & Lafferty, G 2010, ‘The Fair Work Act: As good as it gets, Symposium assessing the Fair Work Act, The Economic and Labor Relations Review, vol. 21, no. 1, pp. 1-12. Viewed, September 6, 2014, . Bogg, A, Forsyth, A & Novitz, T 2013, ‘Worker voice in Australia and New Zealand: The role of the state reconfigured?,’ Adelaide Law Review, vol. 34, no. 1, pp. 1-19, viewed September 6, 2014, . Kaufman, BE 2004, Theoretical perspectives on work and the employment relationship, Industrial Relations Research Association: Champaign, IL. Landau, I, Cooney, S, Hardy, T and Howe, J 2014, ‘Trade unions and the enforcement of minimum employment standards in Australia’, Centre for Employment and Labour Relations Law, Melbourne Law School, University of Melbourne. Accessed September 6, 2014, . McCallum RAO, Moore, M and Edwards, J 2012, ‘Towards more productive and equitable workplaces: an evaluation of the Fair Work Legislation,’ Ministry of Employment and Workplace Relations, Australian Government. Accessed September 6, 2014 . Mitchell, R, Grahan, P, Stewart, A, Cooney, S and Marshall, S 2010, ‘The evolution of labor law in Australia: Measuring the change,’ Australian Journal of Labor Law, vol. 23, pp. 1-31. Rice, S & Roles, C 2010. ‘It’s a discrimination law Julia, but not as we know it: Part 3-1od the Fair Work Act,’ The Economic and Labour Relations Review, Vol. 21, No. 1, pp. 13–36 Sharp, R, Broomhill, R and Elton, J 2012, ‘Modern labor and the Fair Work Act 2009: challenging the male breadwinner gender order?,’ Australian Workplace Innovation and Social Research Centre, The University of Adelaide. Wilkinson, A, Wood, G & Deeg, R 2014, The Oxford handbook of employment relations: comparative employment systems, Oxford University Press: Oxford. Read More