A letter writer to this morning’s Age asks if it is true that Peter Slipper stood down on the condition that Fair Work Australia conduct the investigation! Well not quite. But the gentleman who was Slipper’s adviser has employed an expert in workplace litigation to support his claims against Slipper. Indeed, when a lady is compensated for damage incurred while in bed with her supervisor, it is becoming difficult to know what sort of relationships are not subject to labour market (sic) regulation.
More seriously, as ACCI CEO Peter Anderson has pointed out in a recent speech, the kind of “anything goes” approach by FWA is increasingly making it a subject of ridicule. This arises in part from legislation that, as interpreted by the tribunal, effectively creates a situation in which employers are obliged to respond to almost any claim made by unions. For example, in a recent claim involving Woodside the Full Bench declared that the company’s claim that protected action by the CFMEU was costing $3.5mn a day was “not significant in the relevant sense when considered in the context of the project as a whole unless the further delays on account of the protected industrial action become very protracted”. In the JJ Richards case referred to in my letter below one member of the FWA tribunal declared “It’s perfectly legitimate for us to decide, in this case, as we might in many, that forcing an employer to just sit down and talk without the sword of Damocles hanging over their head, as it were, is a waste of time and at the end of going through everything [what] we need to do to get the determination and then going through some number of steps of bargaining, we’re going to end up right back at the start, where we need to procure a protected action to get any sort of result.”
Des Moore
Flaws keep coming in FWA
letter published in The Australian Financial Review, 24 April 2012
You report an extremely disturbing rejection by a Full Bench of the Federal Court of the appeal by waste contractor JJ Richards and by the Australian Mines & Metals Association against a Fair Work Australia decision allowing strike action, even when bargaining has not commenced and the employer has good reason to postpone that (“Strike first, bargain later”,21-22 April).
In effect, this allows a return to the earlier strike-at-will situation after the initial proscription of strikes up to 1930. From the 1980s industrial disputation in Australia has generally exceeded that in countries with similar economies and undermined our international competitiveness. In fact, although Minister Shorten continually boasts about the continued downward trend in industrial disputation since the 1980s, the FWA effectively allows unions to exploit employers by using various ways to disrupt businesses without actually striking.
The problem thus clearly lies with the FWA legislation: two of the judges in JJ Richards seemingly indicated that unions could have chosen a less confrontational approach.
But allowing unnecessary strike/disruptive action is far from being the only flaw in the legislation. The government should not wait for the review’s completion but set in train immediately a process for legislation that recognises that workers are generally not subject to an imbalance of bargaining power and that competition between employers limits possible exploitation of workers.
Des Moore
Member, HR Nicholls Board,
South Yarra Vic