Fair Work Act 2009 - the Forward with Fairness Act - Essay Example

Running Head: FAIR WORK ACT 2009 Forward with Fairness Act Name: University: Course: Tutor: Date: Fair Work Act 2009 Introduction In March 2006, reforms on the Work Choices Act were started with the aim of introducing fairness at workplaces and to protect the interests of employers and their employees (Department of Foreign Affairs and Trade, 2009). The Forward and Fair Act was introduced in 2009 to cover six key areas: awards, agreements, industrial institutions, termination of employment, minimum legislative standards and a national industrial relations system. The Forward with Fairness Act was established with the intention of improving the welfare of employees as well as creating a better environment at the workplace. The interest of employers has been more protected under the new system of laws compared to the previous laws which granted employees more powers (CCH Editors, 2009). In this paper, I will discuss Forward with Fairness Act under the purview of the changes brought in or proposed to the federal systems of workplace relations by the federal labor government. A critical analysis of the new approach to awards, bargaining, bargaining in good faith, dispute resolution and negotiating workplace agreements, including collective agreements and the role of individual agreements have also been focused on. Other aspects discussed are the role of the right to strike, secret ballots and unions, the role of new and proposed institutions in the system, and the likely impact of the changes to recent court and tribunal processes and decisions. Changes brought in the federal system of workplace relations Under the new laws, employees have the right to select their own representatives during a bargaining session. It is required of the employers to allow their employees to select a representative without interference from the employer. Employees will be provided with statements by their employers on the right to choose their own representative during a collective bargaining session. Employees have the right to attend meetings and contribute to decisions made by the employer. Each party in the collective bargaining session will be required to put into consideration each and every proposal issued by the other bargaining party. In addition, unfair treatment during collective bargaining session will not be allowed (Australian Business Lawyers, 2010). The content of the collective agreement will be determined by the parties in the bargaining. There will be no ‘prohibited content’ in the collective agreement as provided by the previous labor laws. The overall aim of introducing the new labor laws is to ensure that employees are treated fairly. A flexibility clause will be attached to collective agreements to allow changes or addition of information between the employers and individual employees (Australian Business Lawyers, 2010). New Approach of the Forward Fairness Act Awards: The Forward with Fairness law protects employees from exploitation by their employers by providing the minimum wages that can be provided to employees. The law covers all employees earning less than AS $ 100,000 (Kramp, 2009). The law protects the needs of the employer and the employee to ensure that no one is oppressed by the award systems. As such, the law provides the minimum wage rates to be provided to employees to ensure that employees are not exploited. On the other hand, the law does not limit the maximum wage rates that an employer can provide so as to ensure employers are protected. It is required of the employer to maintain a suitable wage rate which maintains the minimum wage law. On the other hand, the employer has the discretion of increasing the wage rate to whatever amount. According to Kramp (2009), The Fair Pay Commission of Australia has the mandate of adjusting the minimum wage rates as provided by Work Choices Act. Bargaining: The Forward with Fairness Act advocates for collective bargaining and highly discourages individual bargaining. Six different types of agreements (AWAs, collective agreements by the employees, collective agreement by the unions, multi-business agreements, employer greenfields agreements and union greenfields agreements) existed under the previous laws. These laws were summarized to focus more on collective bargaining rather than individual bargaining (CCH Editors, 2009). Bargaining in good faith: Section 228 of the Forward with Fairness Act provides the requirements for a good faith bargaining. Under these laws, bargaining representatives have the permission of attending and participating in meetings at reasonable times. Parties to a bargaining agreement are required to disclose relevant information within the specified time. In this case, relevant information refers to any information that may help in making an agreement but does not include confidential information or any information that is sensitive to commercial activities. It also requires that bargaining representatives should respond to proposals that have been made by other representatives in a timely manner. Each representative must avoid doing conducts which may undermine the freedom of association (CCH Editors, 2009). The Forward with Fairness laws provide that all negotiations be done in good faith. Both the employees and the employer will have to be represented in a bargaining session. It is important to note that even though the new laws require that employers engage employees in a bargaining process, there is no requirement to come to an agreement during the bargaining process. The parties to a bargaining agreement are required to express their ideas in good faith and no party should be coerced to make a specific decision. Employee representatives are required to present the decisions of the employees during the collective bargaining process (Riley & Sheldon, 2008). Dispute resolution: When collective bargaining fail, disputes always occur and it is important that all parties seek a dispute resolution system. Forward with Fairness Act provides several dispute resolution mechanisms such as conciliation, arbitration, recourse to the court, and mediation. Unlike the previous laws which issued stop orders whenever a bargaining process failed, Forward with Fairness Act intervenes whenever a bargaining process fails but does not provide the final agreement. The new law provides arbitration whenever conflicts occur (Forsyth & Stewart, 2009). Negotiating workplace agreements: Negotiating workplace agreements under the new Act requires that both the employees and employer come into consensus about how the organization should be operated. Since all employees cannot be involved in a workplace agreement, their representatives deliver the decisions made by all the employees. Under the new laws all employees have equal rights and their decisions should be considered. A rule of majority applies since all ideas cannot be included in an agreement. The representatives take the decisions which have been unanimously agreed upon (CCH Editors, 2009). Role of individual agreements: Under the previous law, there existed individual agreements between the employer and each employee. These agreements related to the workplace code of ethics, terms and conditions of work and any other relevant issue that affects the relationship between the employer and individual employees. The union had no right to interfere with individual agreements unless employees complain of injustice. Such agreements were made between the employer and the employees (CCH Editors, 2009). The Forward Fairness Act changed the provisions of the Work Choices Act by advocating for collective bargaining rather than individual bargaining. The importance of this provision was to protect employees from manipulation by their employers. Collective decision making has been encouraged by the new system by ensuring that agreements favor both the employer and the employee and that no side is favored or disadvantaged (Great Britain: Parliament: House of Commons: Innovation, Universities, Science and Skills Committee, 2009). The role of the right to strike, secret ballots and unions: Most of the standards maintained by the Work Choices Act about industrial action have remained in the Forward with Fairness Act. The Act distinguishes protected and unprotected industrial action and provides immunity to employees who engage in protected industrial action. The Forward with Fairness has the jurisdiction of stopping employees involved in unprotected industrial action. There are conditions which must be fulfilled for industrial action to be categorized as protected. The Forward with Fairness act provides relevant ministers with powers to stop protected industrial action especially when such an activity damages the economy of Australia, causes threats to life, or endangers welfare of the people (CCH Editors, 2009). Similar to the Work Choices Act, the Forward with Fairness Act requires authorization of protected industrial action by the use of secret ballots. Whenever industrial action is proposed by the employees, secret ballots must be cast to ensure that all employees consent to the action. However, ballots are not used when the employer seeks industrial action. Secret ballots provide members to a labor union with the right to make decisions collectively and by the rule of the majority. Any action undertaken by the union must be approved by the members (CCH Editors, 2009). Labor unions act as representatives of the employees to the employer and they have the mandate to negotiate better terms of employment on behalf of the employees. It is the role of labor unions under the Forward Fairness Act to resolve conflicts that may arise at the workplace (Australian Human Resource Institute, 2009). The role of new and proposed institutions in the system: Fair Work Australia was introduced as a referee for industrial relations. The institution replaced all the institutions which had been created under the previous laws such as AIRC, Workplace Ombudsman, Workplace Authority, and Australian Fair Pay Commission. Additionally, under the new laws a Fair Work Ombudsman was created. Fair Work Divisions were also established within the Federal Court and the Federal Magistrates Courts. The Fair Work Australia has the duty to approve enterprise agreements, resolve industrial disputes, adjust minimum wages as well as the conditions for awards, and resolve unfair dismissal claims. The institution is also vested with the powers to monitor compliance with and ensure that workplace laws, awards as well as agreements made collectively are complied with (CCH Editors, 2009). Impact of the Changes to Recent Court and Tribunal Processes and Decisions Forward and Fair Act draws a distinction between state regulations and self regulation of labour relations. State regulations aims at reducing collective procedures and co-regulation of the actors in employment. To achieve this, the new law provides individual employees more powers compared to collectively organized employees. Individual workers have been vested with more powers in decision making than a collective group of employees. Self-regulation mechanisms have been used to provide employers with the ability to control activities in the organization but within specific limits. The requirement of secret ballots in trade unions provides individual employees with the power to make decisions about the operations of the union. The policy of individualism has been enforced under the new laws to ensure that the rights of each employee are protected and that collective decisions are generated from each member of a trade union (Vranken, 2009). Moreover, conflicts between employees and the employers can now be resolved through courts or tribunals. Since collective bargaining has been encouraged by the new set of laws, employers can also easily seek justice at the court of laws. Conclusion The Forward with Fairness Act was established to introduce changes at the workplace and to provide employees with more rights. The law protects both the employee and the employer for an effective economic performance. The new laws will improve conditions at the workplaces since the rights of all stakeholders are protected. In addition, the interests of both the employers and employees have been adequately protected by the Forward with Fairness Act. It is important that employers and employees integrate the new laws into the workplace to ensure goals set by organizations are achieved. The laws are expected to change in the near future since many changes are being experienced at the work environment. As a matter of fact, collective bargaining should be encouraged while individual bargaining should be discarded to ensure the rights of employees and employers are protected. References ACT (2009). ACT: The first fifty years 1959 - 2009. ACT. ISBN 1560090006, 9781560090007. Australian Business Lawyers (2010). Timeline for the roll out of Fair Work Australia. Retrieved 11 Oct. 2010 from; http://www.fairworkaust.com/timeline.php Australian Human Resource Institute. (2009). Fair Work Act 2009 (Cth)-Overview and Transition from Work Choices. CCH Editors (2009). Understanding forward with fairness: a practical guide to the new workplace relations system. CCH Australia Limited. ISBN 1921485760, 9781921485763. Department of Foreign Affairs and Trade (2009). Workplace relations in Australia. Retrieved 11 Oct., 2010 from http://www.dfat.gov.au/facts/workplace_relations.html Forsyth, A. and Stewart, A. (2009). Fair Work: The New Workplace Laws and the Work Choices Legacy. Federation Press. ISBN 186287736X, 9781862877368. Great Britain: Parliament: House of Commons: Innovation, Universities, Science and Skills Committee (2009). Students and universities: eleventh report of session 2008-09, Vol. 2: Oral and written evidence, Volume 2. The Stationery Office, ISBN 0215540727, 9780215540720. Kramp, O. (2009). Minimum Wage Legislation in Australia. GRIN Verlag, ISBN 3640309979, 9783640309979. Riley, J. and Sheldon, P. (2008). Remaking Australian Industrial Relations. CCH Australia Limited, ISBN 1921485191, 9781921485190. Vranken, M. (2009). Death of labour law: comparative perspectives. Academic Monographs. ISBN 0522856306, 9780522856309. Read More