Fair Work Act 2009 (Cth): Candid Author Interviews to Commemorate 10 Years

Thomson Reuters commemorates 10 years of the Fair Work Act 2009 (Cth) (the Act), with the release of Fair Work Legislation 2019 – 20 (FWL).

We catch up with leading experts in workplace relations; the authors of National Workplace Relations and general editors of FWL, Dr Victoria Lambropoulos, Mark Rinaldi, Rohan Millar and Aaron Neal to discuss their careers, their “wish list”, and changes facing practitioners specialising in workplace relations. 

Biggest workplace relations changes seen over the last decade

Decline in industrial action

Aaron believes the biggest change has been the reduction in the level of industrial disputation and industrial action generally.

“Most recently, there has been a noticeable shift away from enterprise bargaining,” he said.  

Introduction of the Act

According to Victoria, the introduction of the Act; particularly the minimum standards eg National Employment Standards (NES) and Modern Awards has been the most important change noting,

“This was a seismic shift, from a focus on disputation to a more administrative focus, where parties now must make more “civilised” submissions to the Fair Work Commission (FWC). The area is now dominated by experts who can write detailed submissions rather than experts in industrial dispute negotiation and resolution. It is an entirely different skill set.”

Mark agrees, adding, “the introduction of the more comprehensive General Protections scheme in the Act, which has entrenched the greater focus on individual rather than collective industrial relations over the last couple of decades” has been a notable change.

Shift in terminologies

Over the last 10 years, how people talk about industrial and workplace disputes has changed, noted Rohan. 

“Labels are important – there is a real significance in the move from ‘industrial relations’ to ‘workplace relations’.  Practice in this area used to focus on industrial disputes – that was the constitutional underpinning as well as the practical reality, eg entrenched tensions between organised labour and employers. Now the focus is employment at a workplace level and individual rights.  This trend extends back well beyond the Act, but the advent of the NES, adverse action, uniform Modern Awards and detailed enterprise bargaining provisions, means practice as a workplace relations lawyer bears little resemblance to that of a counterpart of even a decade ago.”

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Most memorable moments working in workplace relations

Being a Legal Officer at the Finance Sector Union and the amalgamation of the CFMMEU…

“I was involved in litigation against the Commonwealth Bank re Commsec under the previous Workplace Relations Act 1996 (Cth) securing the largest fine (at the time) against an employer for contravention of freedom of association provisions. Most recently, the decision of the Full Court of the Federal Court upholding the decision of the FWC approving the amalgamation of the CFMMEU was a memorable moment for me.” – Aaron  

The “short-lived” Work Choices era…

“It was an exciting time to be working and writing.  Workplace relations was the ‘new black’. The media were interested, significant debate occurring almost weekly; there was even a constitutional challenge to the High Court!  Looking back, much of the reporting was misinformed and largely driven by political rhetoric but ordinary workers seemed to be engaged, perhaps for the first time in their lives. There was certainly engaged and lively debate in lecture theatres at universities which I welcomed. Unfortunately, in my experience, that level of interest is not there today.” – Victoria

Moments that can’t be narrowed down…

“I have a few! It’s not quite a moment, more like six years, but being brought into a case on my first day in the office at Freehills Melbourne in 1994 which I remained on as a solicitor, senior associate and then as junior barrister until final judgment in 2000.  Also, watching the injunction hearing in the Federal Court in the Patricks dispute in 1998.  Recently, the great experience of teaching enthusiastic university students with a real interest in the area.” – Mark

Institutional changes…

“Probably the demise of the old IR system in Victoria.  My first appearance, arguing a full case on my own as a young solicitor, was in the old IR Commission of Victoria (IRCV), in 1990.  Suddenly the arguments I was running counted, a real client was relying on me, and a stenographer noting down every word on a shorthand machine that I never really understood.  After that – the IRCV morphed into the ERCV and then, seemingly out of the blue in 1996, it was abolished.

The first reaction was disbelief – an entrenched State system, with so much jurisprudence, had gone.  But then the realisation set in – we didn’t really need the State system.  The Keating/Brereton reforms saw a new Federal system of minimum employment standards, enterprise bargaining and unfair dismissals, having a State Commission was an extra unnecessary level of bureaucracy.  I am still waiting for decisions in a couple of cases though…” – Rohan

The “wish list” – changes that the current workplace relations framework needs …

1. “To remove increasingly technical restrictions on taking protected industrial action.”

“For example, the requirement to have a PAB order before taking protected industrial action and legislating to undo the High Court decision in Esso; that under the Act if a bargaining representative has breached an order of the FWC in relation to industrial action, the bargaining representative cannot take protected industrial action in relation to the same enterprise agreement.” – Aaron

2. A demystified collective bargaining framework

“The current collective bargaining framework has become far too complex and legalistic. In the sea of technical detail and multiple interpretations of some provisions, the prime purpose of having collective bargaining in the first place, has been lost. The FWC are taking too long to approve agreements. Something has to change if we are going to have a viable collective bargaining system moving forward which can serve our economy.” – Victoria

3. Removing the permission requirement for lawyers to represent clients in the FWC

“The anachronistic requirement for lawyers to obtain permission to represent clients in the FWC. It has become increasingly common for businesses to utilise the services of lawyers rather than lay advisers and advocates.  Clients want their lawyers to act, and Commissioners usually find that the cases before them run smoother when lawyers are acting, so I really don’t understand why the requirement for permission is maintained.  The idea that workplace relations is non-technical can be exploded just by looking at the size of the Act!” – Mark

4. Addressing the “better off overall test”

“Probably one not included in the more technical changes listed in FWL – addressing the “better off overall test”.  Requiring every employee to be better off compared with Award conditions leaves enterprise bargaining as a pretty unattractive option for employers looking to offer simplified terms and conditions.  If the drift away from enterprise bargaining is to be reversed, a less onerous test for reinforcing minimum standards must surely be considered. 

Out of my wish list in FWL? Rethinking the adverse action jurisdiction stands out as the highest priority. There is much to be said for either returning the prohibition to its pre-2009 state; protecting employees from victimisation because of participation in Commission proceedings or enforcing statutory rights, or having such claims heard in the Commission rather than the courts.” – Rohan

Main challenges that workplace relations practitioners face today

  • “Keeping abreast of ever-changing legislation which is continually amended and becoming increasingly technical – practitioners are required to be technocrats more than ever before!” – Aaron
  • “The complexity of the law itself obscures the real focus of the area which is people and their daily working lives. Are we really making working lives better and supporting businesses to run their daily operations in the long run?” – Victoria
  • “Keeping up with changes in technology; eg the rise in unfair dismissal cases involving social media-related misconduct and the recent decision of Lee v Superior Wood concerning employee privacy in relation to biometric scanning for workplace entry and exit systems.” – Mark
  • “Changing patterns of work mean the current system is at risk of irrelevance to many.  Our system of Awards and employment regulation is very much rooted in an era of 9 — 5, Monday — Friday jobs. The challenges of the “gig-economy” are well documented – growing numbers work outside of the traditional employee/employer relationship.  Keeping the system relevant to the changing needs of the modern workplace will remain a challenge to legislators and practitioners alike.” – Rohan

About the authors of Fair Work Legislation 2019 – 20

Aaron Neal is a consultant lawyer to the Maritime Union of Australia Division, Construction, Forestry, Maritime, Mining and Energy Union. Aaron has extensive experience in workplace relations and employment law and has also been the National Legal Director of the Maritime Union of Australia from 2011 – 2018 and of the Maritime Union of Australia Division, Construction, Forestry, Maritime, Mining and Energy Union from 2018 – 2019.

Dr Victoria Lambropoulos is an academic and barrister. Victoria is currently a Senior Lecturer at the School of Business & Law at Central Queensland University’s Melbourne campus. She has previously worked at Monash and Deakin Universities as well as ANU College of Law in Canberra. Victoria’s PhD examined summary dismissal under the Contract of Employment. Victoria is also a member of the Victorian Bar where she practises in employment/industrial relations and discrimination law.

Mark Rinaldi is a leading industrial and employment law barrister. Prior to joining the Victorian Bar in 1997, Mark was a solicitor and Senior Associate at Freehills in Perth and Melbourne in commercial litigation and employee relations. He was also Associate to Justice French of the Federal Court (later French CJ of the High Court) in 1990 – 91. He is a national committee member of the Australian Labour Law Association, an Adjunct Lecturer in Law at the University of Tasmania and a Senior Fellow in the Faculty of Law, Monash University.

Rohan Millar is a Melbourne barrister practising in employment law.  He appears regularly in the Fair Work Commission and the courts, particularly in cases involving termination of employment, post-employment restraints, discrimination, employment contracts and industrial disputes.  Prior to joining the Victorian Bar he was a solicitor at Mallesons Stephen Jaques and Arthur Robinson & Hedderwicks.

Rebecca is an admitted lawyer in New South Wales and Legal Editor. She manages a variety of subscription services, including National Workplace Relations and edited Fair Work Legislation 2019 20. Rebecca holds a Bachelor of Arts (English Literature) (Distinction) and Bachelor of Laws from the University of Wollongong. Prior to joining Thomson Reuters, Rebecca was an employed lawyer at John Lloyd & Co Solicitors & Attorneys.

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