Fair Work Act review Submission by the Australian Institute of Marine and Power Engineers
Introduction The Australian Institute of Marine and Power Engineers (AIMPE) is one of the many registered organisations operating under the Fair Work Act. AIMPE was first registered under Federal law in 1906. A number of features of the current legislation have been of concern to AIMPE.
s457 visas issue AIMPE has been concerned for some time about the developing practice of using s.457 visa workers on a fly-in fly-out basis in the Australian coastal shipping industry and in other sectors of the maritime industry. One corporate group in particular, CSL group is using Ukrainian and Filipino engineers to operate its ships. Enterprise Agreements have been drawn up overseas (e.g. Odessa, Ukraine) signed overseas by individual employees, countersigned in Australia by the employer and filed with Fair Work Australia. FWA has approved these Agreements and, because of the nature of the scope of the Agreements, they then become binding for 4 years on all officers (Deck and Engineer) who subsequently work on them. Needless to say, these Agreements are below the standards that have applied under other Enterprise Agreements negotiated by AIMPE through genuine collective bargaining in Australia.
Initiation of Bargaining A procedural flaw in the FW Act that AIMPE has identified is the lack of a provision for employee representatives to initiate the bargaining process. Under previous legislation there was a process which allowed any party to an Agreement to initiate the bargaining process (s.423 Workplace Relations
1996, as amended). That legislation included a form – Notice of Initiation of Bargaining Period. This was a straightforward way the employee representatives could start the ball rolling. Now the initiation of the process is largely in the hands of the employer. If the employer does not agree to negotiate, then the employees are left with limited options. One option is to take industrial action to attract attention. In this way the FWA actually encourages a certain proportion of industrial disputation. Under the old conciliation and arbitration legislation the prevention and settlement of industrial disputes was a key object of the Act. This language is not a feature of the current legislation based as it is on other heads of constitutional power.
Collective Bargaining issues The Fair Work Act has various limitations on the matters that can be the subject of bargaining and the content of Agreements. The concept of collective bargaining should allow the parties to include in their agreements whatever matters that they can agree to through good faith bargaining. Obviously this cannot include agreement to permit illegal acts e.g. breach of anti-discrimination laws.
Notice of Industrial Action –
no even playing field The Qantas dispute demonstrated that there is not an even playing field in the processes of the FWA. Under s.414 of the Fair Work Act unions must give notice, after going through the extended protected action ballot process, of intention to take industrial action. 3 working days notice is required from the union.
However the lockout action taken by the employer can be taken without any minimum period of notice. That is the employer response action can be virtually instantaneous. This is not a fair and even-handed industrial relationship. If the Fair Work Act was amended to require a fair and balanced notice period from the employer, an employer who is in an industrial dispute could respond to union notice of industrial action with a counter notice giving three days notice of intention to lockout the workers. This would create a balance in the processes of the Act.
Lack of Powers for FWA Ever since the introduction of the Industrial Relations Act 1993 the powers of the Federal commission have been severely limited. The legislation introduced by Laurie Brereton made the first step in the transition from the traditional
‘conciliation and arbitration’ system to the ‘enterprise bargaining system’. Now there are only very limited circumstances under which the FWA can step in and settle a new Agreement. One of these is the industrial action related workplace determination under s.266. The implementation of these provisions has been such that they present a very high hurdle. AIMPE suggests that the powers of the FWA should be expanded to provide for workplace determination (or arbitration) in cases where the parties have been unable to negotiate an agreement despite exhausting genuine, good faith bargaining.
Martin Byrne Assistant Federal Secretary AIMPE
On Watch March 2012 page 23
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