(Not so) Fair Work Australia

Industrial officer AMIEU Queensland

More than 18 months have passed with the Fair Work legislation in place. It’s a fair point in time to have a look at how one of the major institutions under the legislation, Fair Work Australia (“FWA”), has been going.

FWA replaced the old Australian Industrial Relations Commission (“AIRC”). During the 11 years of the Howard government, the AIRC was “stacked” with employer friendly appointments. Of the 30 odd appointments as Commissioners or Presidential members, only one of the new members came from a union background. The rest were people who had worked for employer organisations, senior HR managers from anti-worker employers like Telstra and Rio Tinto, Barristers who made their fortune out of appearing for employers or even people with no better claim to fame than having been a political flunky for Liberal Party Government Ministers.

Before the election of Kevin Rudd in 2007, the Labor Party was making noises about ending the AIRC and starting fresh with FWA, meaning all of the old members of the AIRC were out of a job unless they were reappointed to FWA. It was a golden opportunity to restore some balance to the institution. Unfortunately, the Labor Party folded like soggy cards on the point. The AIRC was simply re-badged as FWA . The name changed, but the personnel remained the same.

Unfair Dismisals

During 2009/10, there were 13,054 unfair dismissal applications made to FWA. Of these, 11,823 were resolved by conciliation. 142 cases actually went to a full hearing by FWA. Of these, 22 applicants were actually reinstated. So, of 13,054 applications for unfair dismissal, 22 lucky workers actually got their job back, or 0.1685% of all applicants.

Of the 142 decided cases, 51 applicants established their dismissal was unfair but received compensation instead of reinstatement. So, of 13,054 applications for unfair dismissal, 51 lucky workers received some arbitrated order for compensation, or 0.3906% of all applicants.

Two (2) applicants who established their dismissal was unfair received no compensation or reinstatement order.

Statistical information indicates that 75% of the 11,823 cases resolved by conciliation were resolved with payments of $4,000 or less and 50% of the 11,823 were resolved with payments of $2,000 or less. It’s hardly a bonanza of cash.

Some commentators (including FWA personnel) like to point to the fact that a large number of applications are resolved by conciliation and this means FWA must be doing a good job in resolving these matters without the need for a hearing. When you look at what the value of the average settlement is, I think the high settlement rate has a lot to do with the fact that (statistically) you face an uphill battle in getting reinstated out of an unfair dismissal application.

Right of Entry

Under WorkChoices, an employer had a largely unfettered right to make a union official visiting their premises sit in a small room away from the lunchroom or other places where workers congregate. Of course, the rooms allocated to union officials quite often (coincidentally) were right next to the General Manager’s office, or even the Human Resources Manager.

The Fair Work Act made some changes. A request to use an area or room will be automatically “unreasonable” if the request is made with the intention to intimidate, discourage or make it more difficult for workers to speak to a union official.

So the legislation has changed. Yet of the cases heard in FWA so far involving requests by employers for a union official to use a room next the bosses offices, or in high view of the bosses, none has resulted in a finding that the request was made with the intention to intimidate, discourage or make it more difficult for workers to speak to a union official.

Another legislative change is that a request to use a room or area will be automatically “unreasonable” if the room or area is not “fit for the purpose” of conducting discussions.

So what about the scenario where a union official is given a room that can only hold ten people at a time and there are 300 people working at the workplace?

According to FWA, “no problem”. The room is still fit for the purpose because the Act only contemplates discussions occurring in small groups or one on one. The members of FWA who made this decision didn’t divulge what part of the legislation they were relying on to support this view. Despite our best and careful searches, we haven’t been able to find it.

On the current approach, the legislation could be in place for another century and you can lay certain odds that no employer will ever be found by FWA to have made a request with the intention to intimidate, discourage or make it more difficult for workers to speak to a union official.