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First day on the job for Fair Work Australia
1 July 2009
The AiG today used the historic inaugural sitting of Fair Work Australia to call on the new institution to avoid looking abroad for guidance on good faith bargaining, as employer and union representatives joined Workplace Relations Minister Julia Gillard in welcoming the occasion.
The AiG's national IR director, Steve Smith, urged the assembled members in Sydney not to look to US jurisprudence in its "critical" decisions on the new obligation to bargain in good faith.
While there were common principles underlying the bargaining frameworks in the two countries, "we see far more relevance in Australian decisions than decisions of tribunals and courts of other nations", he said.
Smith told the sitting that the legislation establishing the US National Labor Relations Board and the good faith bargaining obligation had been introduced in 1935 and amended only once, in 1947.
As a result, he said, the good faith bargaining principles in the US "were developed a very long time ago" and had limited relevance in Australia.
Smith also said it was a great credit to the AIRC's President, Justice Giudice, that award modernisation was on track, after he was given "what seemed like an impossible task".
Gillard told the FWA members that the new institution's role as the independent industrial umpire stood close to the heart of Australian democracy.
She said FWA would stand on the shoulders of the AIRC and Conciliation and Arbitration Court, in advancing the "Australian version of fairness" that began with the concept of the living wage determined by Justice Higgins in the Harvester judgement.
Since then, the industrial arbitration system had many great achievements, from the 44 hour week in 1927 to more recent landmarks such as the Termination, Change and Redundancy and Reasonable Hours test cases, she said.
But, she said, arbitration has now been replaced by enterprise bargaining at the heart of the system, a change that will see FWA perform a different function to its predecessors.
She said it will continue to play a key role in maintaining the safety net – "the bedrock of the system" – but its focus will increasingly be on making bargaining work, including through ensuring good faith bargaining and acting as a "hands-on facilitator" in the new low-paid bargaining stream.
"For those that need its help, Fair Work Australia has the opportunity to find new ways to work with employers, employees and their representatives to foster co-operative, constructive and productive workplace cultures," she said.
Gillard opened her speech, by quipping to the President that it took her "back to my legal days when I appeared against you rather than before you", in a comment that might have greater resonance after this week's public spat between the two, after Gillard told reporters she wouldn't be responding to the AIRC's request for further details about the changes she is seeking to the modern restaurants and catering award (see Related Article).
FWA to be more effective: Giudice
Justice Geoffrey Giudice began his first address as FWA President on a humorous note, saying while he welcomed the speakers' comments "we're all realistic enough to know the new tribunal is at this moment at the peak of its popularity".
He said the creation of FWA was a significant event in the nation's history and that, through its minimum wage setting, dispute resolution and agreement facilitation functions, the tribunal's work would affect the lives of millions of Australians.
The new IR laws depart from their predecessors in establishing a truly national IR system for the private sector, finally doing away with the complexity and artificiality that had been associated with need to identify interstate disputes, he said.
"No-one regrets the passing of those technicalities, although no doubt other jurisdictional issues will arise," he said.
As for FWA itself, he said structural changes will help increase its effectiveness, while the nature of its work will change as the focus of its work increasingly shifts from collective to individual dispute resolution.
He said the tribunal's commitment to fairness and impartiality will continue to be important as its work will always be "attended by a degree of controversy".
"Participants in the workplace relations system very often have strong views and we very rarely find ourselves without the benefit of advice by way of submission, or even less formal means, from the informed and not so well informed alike," he said.
Justice Guidice also highlighted that each of the FWA members at the sitting had earlier in the morning taken an oath or affirmation to carry out their duties faithfully and impartially.
"I mention that because it is a tangible indication that people coming before the tribunal can be confident that it will carry out its functions fairly, independently and within the framework the legislature has provided", he said.
Burrow the latest to declare Work Choices dead
ACTU president Sharan Burrow welcomed the commencement of FWA on behalf of the union movement, said: "Work Choices is dead, the Fair Work Act lives, and we will be all better off as a result."
She said FWA would be an institution of great economic significance and urged it to use its new ability to conduct research and inquiries at its own initiative to become a centre for "evidence-based, non-partisan labour market policy".
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Original article: Workplace Express – www.workplaceexpress.com.au
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