Discuss about the Role of the Fair Work Commission for Dispute Resolution.
In Australia, any employer must be informed of the existing bodies and groups that handle the work for the good of the Australian workers. The Fair Work Commission is one of the bodies that work for the employees’ benefit. The national tribunal involved in handling workplace relations is the Fair Work Commission (FWC) (Fair Work Australia, 2010). This commission has the power to conduct a range of functions regarding workers independently. As a party that works for interest of Australia’s workforce, it services different functions such as enterprise bargaining, dispute resolution, industrial action, termination of employment, and “enforcing the safety net of minimum wages and employment conditions” (Employsure, 2017, par. 1).
Although the FWC is an independent body, it has the statutory powers established under the Fair Work Act 2009. In fact, it has to operate like the Australian court in handling various workplace matters (Stewart, 2011). Commonwealth of Australia (2008) noted that the commission has the powers to hear disputes and claims related to the employment and deliver a binding sentence that the parties involved must respect. Without a doubt, it might appear that the tribunal was established purely to support and protect the employees (Creighton & Stewart, 2010). Conversely, this commission has the primary responsibility and objective to assisting employers and employees in maintaining productive and fair workplaces. Given the significance of the FWC in Australia, this article intends to define its roles in making and approving agreements.
The FWC is the eye and protector of employees and its roles are varied but within the scope of workplace relations. Most important, this commission must approve enterprise agreements, set the Australia’s national minimum wages, resolve disputes defined under the National Employment Standards, agreements, or awards (Cane & McDonald, 2008). The law also allows it to act as an arbiter in disputes relating to adverse actions and unfair dismissal. At the same time, the commission has to create and change modern awards to fit the situation and circumstances at work.
For employees, the worst and the lowest moment is when an employer unfairly dismisses him or her. This depressing situation requires proper handling. The FWC (2016) offers the employees an opportunity to raise such issues because it has the statutory powers to determine an award. Based on the circumstance, the FWC can act on an unfair dismissal by considering financial compensation or reinstatement (Stewart, 2011). However, for the commission to act on such weighty issues, the employee must follow the stipulated procedures in the Fair Work Act 2009 that requires such a person to lodge a formal complaint and stipulate the reasoning. Fair Work Ombudsman (n.d) allows the employee to cite the reasons for believing it was a unfair dismissal, victimized, discriminated against, bullied at work thus seek an order to prevent the recurrence of the situation.
Upon the completion of the application, the employee should submit to the commission for assessment and forward the document to the company or employer requesting for responses (Creighton & Stewart, 2010). These activities form the basis for the mediation process. The subsequent steps will be determined by the severity of the complaint and the response of the employer.
The Fair Work Commission receives over forty percent of complaints relating to unfair dismissals (Acton, 2010). According to the FWC (2017), unfair dismissal is borders on unreasonable, unjust, or harsh sacking of a worker. In most cases, the employees consider nearly all the dismissals as unfair. Nevertheless, the FWC defines it different and conduct independent assessments to verify the situation. Apart from assessing the fairness question, the commission also looks at how such dismissals were undertaken. This does not mean that employers can never dismiss workers, but they have to use fair procedures. For the Commission to determine the procedural fairness, it uses three determinants. Fair Work Ombudsman (n.d) maintains it has to consider whether the allegations were put to the employee detailing the reasons, whether the worker was given appropriate time to respond, and whether the worker failed to respond or responded but his accounts were never considered before the fateful termination.
Enterprise agreements for the basis of any collective agreements that employers and employees make at an enterprise level regarding the employment terms and conditions (Commonwealth of Australia, 2008). The FWC (2017) provides the guidelines and information about the agreement making process. It has the mandate to assess and approve the enterprise agreements. The commission also handles the disputes arising from the terms of agreements. According to FWA (2010), an enterprise agreement is made between employers and employees through their representatives. For example, in the Greenfield agreements, the employer has to negotiate with organizations or unions to reach the agreements about the employment terms. Australian Government (2016) argues that an enterprise agreement covers the modern awards that offer safety net relating to employment conditions and the minimum pays rates. The agreement also contains wages deductions, pay rates, consultative mechanisms, procedures for dispute resolutions, and employment condition like meal breaks, working hours, and overtime. The law prohibits the inclusion of unlawful clauses including objectionable and discriminatory terms in the agreement.
The bargaining agreement is a time-consuming and stressful process for employers. Sometimes the employee’s favours a proposal that grants them benefits thus deny the employer a breathing space. Before the approval of such an agreement, the FWC has the responsibility of satisfying (Creighton & Stewart, 2010) that the agreement meets the requirements. Sometimes the employers and employees may support the agreements; there could be errors that can prove fatal. Therefore, the commission must check all the grey areas before the adoption. Based on the recent case of CEPU v. Mirait Technologies Australia Pty Ltd (C2015/4054), the firm questioned the decision of this commission in approving the Mirait technologies agreement. The Union contested why the commission approved the agreement because the parties (Russell Kennedy, 2015) had not agreed the enterprise agreement.
It was apparent that the majority of the employees approved the document. Unfortunately, Mirait Technologies “had submitted two statutory declarations in support of the proposed agreement that were inconsistent” (Russell Kennedy, 2015, par. 3). The court identified the inconsistencies and raised eyebrows how the workers approved the statutory before voting. Because of the Mirait’s appeal, the company would have an opportunity to vote for the proposed agreement. Based on this case, it was evident that the employer attempted to use an external advisor without the expertise to negotiate and adopt this agreement with the employees directly. The law requires the commission to assist these employers, especially following the commission’s move to reject the enterprise agreements. Under the FWA 2009 (Cth), any employer-employee agreement should not contain clauses contravening the requirements thus make the agreement unable to meet the overall test (FWC, 2016). The failure by the employer to complete and submit the agreement or failure to take necessary actions regarding the pre-approval steps as required within a given timeframe.
In case of any rejection, the employer has to start the process again thus expose such a stakeholder into a time-consuming, frustrating, and embarrassing task (Hannan, 2017). Businesses experiencing industrial actions can allow the union representatives to renegotiate the rejected agreement and address the contentious clauses. This rejection confirms that employers must follow the due procedures before submitting an enterprise agreement. Russell Kennedy (2015) recommends that the employers needs to consider professional advice when negotiating the agreement with unions or employees directly. Based on this litigation, it is arguable that the FWC plays a critical role in making an agreement based on the laid down procedures.
The employers who opt to use the enterprise agreement must consider the FWC’s approval. This will facilitate the registration of the agreement with the employees. The Fair Work Commission expects the employer to put in places the bargaining representatives that would champion for the employer’s rights. The organization can also appoint a competent person to handle the situation in writing (Creighton & Stewart, 2010). The FWC expects the employees also to have the representatives such as the union. These two parties must agree on the terms of employment to pave way for either party to apply for the FWC’s approval. This should be within 14 days after the parties have made the agreement.
Under the Fair Work Act, there should be specific clauses to accommodate in the agreement that will make it a complete declaration. Both the parties should have the copies completed and signed by the parties. There should be three original copies that the FWC can give any representative after the approval through emails or any other media. The final step will involve the approval of this agreement (Australian Government, 2016). The FWC has to assess the agreement to ensure it captures all the requirements. For instance, the enterprise agreement needs to consider the dispute resolutions mechanisms, whether it was genuinely agreed, better off overall tests, based on good faith, adheres to the national employment standards, the fair coverage of employee’s scope, and ensures that employees have not been threatened or coerced into making the agreement. However, in case of any questions, the commission has to seek audience with the parties by attending hearings thus facilitate the approval of the agreement. Based on the statute, the Commission can approve it after 50 days (LegalVision, 2015).
Conclusion
Based on this article, it is evident that making and approving an enterprise agreement is a process that can prove hectic and embarrassing. For example, the employer and employee must agree on the terms of employment for such an agreement to be approved. Under the Fair Work Act 2009, the Fair Work Commission has the responsibility to provide the guidelines on how the parties make the agreement. The article has thus addressed the aspects of making and approving agreements and resolving unfair dismissal issues in the workplace.
References
Acton, J. (2010 Nov 19). Where Have All The Cases Gone? Voluntary Resolution Of Unfair Dismissal Claims. Australian Labour Law Association National Conference, Adelaide.
Australian Government. (2016, Nov 17). Fair Work Act 2009. Retrieved from <https://www.legislation.gov.au/Details/C2016C01108>
Cane, P., & McDonald, L. (2008). Principles of Administrative Law: Legal Regulation of Governance. Melbourne: Oxford University Press.
Commonwealth of Australia. (2008). Fair Work Bill 2009. Explanatory Memoranda. Retrieved from <https://www.austlii.edu.au/au/legis/cth/bill_em/fwb2009124/memo_0.html>
Creighton, B., & Stewart, A. (2010). Labour Law, Fifth Ed. Sydney: Federation Press.
Employsure. (2017). The Fair Work Commission. Retrieved from <https://employsure.com.au/guides/fair-work-australia/fair-work-commission/>
Fair Work Australia (FWA). (2010). Annual Report of Fair Work Australia 1 July 2009-30 June 2010. Melbourne: Fair Work Australia.
Fair Work Ombudsman. (n.d). Agreements. Retrieved from <https://www.fairwork.gov.au/awards-and-agreements/agreements>
FWC. (2016, Dec 29). Make an Agreement. Retrieved from <https://www.fwc.gov.au/awards-and-agreements/agreements/make-agreement>
FWC. (2017, April 3). Enterprise Bargaining. Retrieved from <https://www.fwc.gov.au/awards-and-agreements/agreements/about-agreements/enterprise-bargaining>
Hannan, E. (2017, Feb 8). Fair Work Commission Ruling Opens Way for Back Pay Claim. The Australian. Retrieved from <https://www.theaustralian.com.au/national-affairs/industrial-relations/fair-work-commission-ruling-opens-way-for-backpay-claim/news-story/af289ba51619d91f13d0fd49195af521>
LegalVision. (2015, Aug 6). How Does the Fair Work Commission Approve an Enterprise Agreement? Retrieved from <https://legalvision.com.au/how-does-the-fair-work-commission-approve-an-enterprise-agreement/>
Russell Kennedy. (2015, Aug 5). Enterprise Agreements and the Important of Obtaining the Support of the Fair Work Commission (and not just Your Employees). Lexology. Retrieved from <https://www.lexology.com/library/detail.aspx?g=7a9162d3-0baf-4c82-9065-50dba3ad238a>
Stewart, A. (2011). Fair Work Australia: The Commission Reborn. Journal of Industrial Relations, 53(5).
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