HSU
SUBMISSION TO THE REVIEW OF THE
FAIR WORK ACT 2009
HSU SUBMISSION OT THE FAIR WORK ACT 2009 REVIEW
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GLOSSARY
ALP
Australian Labor Party
FWA
Fair Work Australia
FW Act
Fair Work Act
HSU
Health Services Union of Australia
ILO
International Labor Office
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INTRODUCTION
1. The Health Services Union (HSU) welcomes the opportunity to make a submission to the
Fair Work Act Review. The HSU is a national union representing a diverse range of
health professionals and employees in the health and community service sectors. The
HSU represents members covering a broad range of skill sets including but not limited to
radiographers, medical scientists, pathology workers, psychologists, disability workers,
mental health workers, ambulance officers, kitchen staff, cleaners, aboriginal health care
workers and personal care attendants. Our coverage varies from state to state and
across Australia. The essential purpose of the HSU is to represent the interests of
members in the workforce to improve member outcomes and contribute to the ongoing
improvement of health and community care policy, services and facilities for clients.
2. The HSU recognises that the Rudd and Gillard Labor governments has attempted to reshape the industrial landscape by ameliorating some of the pernicious, anti-worker
“WorkChoices” 1 legislation implemented by the former Howard Coalition government
however, restoration of worker’s rights have not in the view of the HSU been achieved.
The establishment of a legislative safety net of 10 National Employment Standards
(“NES”), the provision of a framework for Modern Awards and a Fair Work Act (“FW Act”)
that contain some provisions to assist workers is welcome however, these actions in
totality do not provide the necessary structure for workers and their authorised
representatives, trade unions, to freely pursue worker entitlements. The HSU submits it is
inadequate to assess the current industrial legislation based on a comparison with the
“WorkChoices” legislative framework. It is more appropriate to consider worker’s rights
from a viewpoint of international obligations and the rights of workers to freely engage in
conduct associated with their employment rights.
3. Trade unions have and continue to play a central role in Australia’s industrial relations
system and the pursuit of social agendas to benefit all Australians. Trade unions have
been responsible for the implementation and enforcement of a broad range of industrial
On 26 March 2006 “WorkChoices” came into force stripping workers rights back to 5 minimum conditions of
employment and put removed the requirement to take ‘fairness’ into account when setting minimum wages.
1
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instruments securing terms and conditions of employment for workers to achieve a
sustainable form of living. This continued fight for workers’ rights has more recently
occurred against a backdrop of extreme anti-union political activity from conservative
politicians and business groups, and legislative action of the former Howard government.
4. The Howard government “WorkChoices” regime saw a dismantling of Australia’s
industrial relations system. Howard imported a political agenda by way of legislative fiat in
contravention ILO Conventions at the expense of worker’s rights. In 2007 the then ALP
opposition campaigned hard against the misnomer of “WorkChoices” . The ALP national
platform “Forward with Fairness” vowed to abolish the ‘...Howard Government’s unfair
Work Choices...’ and stated ‘...Employees will have rights if dismissed unfairly.’ (ALP,
2007, pg.1). Furthermore, the platform vowed to restore collective bargaining rights
asserting ‘We will ensure that the right of all Australians to join together and bargain for
fair pay and conditions is protected.’ (ibid, pg.1).
5. The Australian trade union movement actively campaigned against the incumbent
Howard government under the slogan “Your Rights at Work” (YRAW). This grass roots
campaign broadened the community’s understanding of the implications of “Workchoices”
and provided the political space for the community to make alternative choices regarding
workplace rights. The YRAW campaign promoted the ALPs Forward with Fairness
platform and the myriad commitments contained within.
6. After successful campaigning, skilfully assisted by the YRAW campaign, the ALP were
voted into government on 24 November 2007 and the ALPs Fair Work Act 2009 (“the FW
Act”) commenced on 1 July 2009. Section 3 of the FW Act sets out the objects of the FW
Act as follows;
3 Object of this Act
The object of this Act is to provide a balanced framework for cooperative and
productive workplace relations, that promotes national economic prosperity and social
inclusion for all Australians by:
(a) providing workplace relations laws that are fair to working Australians, are flexible
for businesses, promote productivity and economic growth for Australia’s future
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economic prosperity and take into account Australia’s international labour
obligations; and
(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms
and conditions through the National Employment Standards, modern awards and
national minimum wage orders; and
(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum
wages and conditions can no longer be undermined by the making of statutory
individual employment agreements of any kind given that such agreements can
never be part of a fair workplace relations system; and
(d) assisting employees to balance their work and family responsibilities by providing
for flexible working arrangements; and
(e) enabling fairness and representation at work and the prevention of discrimination
by recognising the right to freedom of association and the right to be represented,
protecting against unfair treatment and discrimination, providing accessible and
effective procedures to resolve grievances and disputes and providing effective
compliance mechanisms; and
(f) achieving productivity and fairness through an emphasis on enterprise-level
collective bargaining underpinned by simple good faith bargaining obligations and
clear rules governing industrial action; and
(g) acknowledging the special circumstances of small and medium-sized businesses.
7. This submission to the FW Act review explores the impact of the FW Act in its first 2
years of operation.
INTERNATIONAL LABOUR OBLIGATIONS
8. Australia is a member state of the International Labour Organisation(“ILO”) and has
ratified a number of ILO Conventions including;

C87, Freedom of Association and Protection of the Right to Organise Convention,
1948; and
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
C98, Right to Organise and Collective Bargaining Convention, 1949.
9. As a member state Australia has signalled by its ratification of these Conventions to
actively support and uphold fundamental human rights enshrined in these Conventions.
In 1998 these rights were restated by the ILO in the Declaration on the Fundamental
Principles and Rights at Work. In particular, the 1998 declaration reaffirmed universal
rights to;
• freedom of association and the effective recognition of the right to collective
bargaining;
• the elimination of all forms of forced or compulsory labour;
• the effective abolition of child labour;
• the elimination of discrimination in respect of employment and occupation2.
10. The underpinning right to free bargaining is set out in Article 4 of C98 as follows;
Measures appropriate to national conditions shall be taken, where
necessary, to encourage and promote the full development and utilisation of
machinery for voluntary negotiation between employers or employers'
organisations and workers' organisations, with a view to the regulation of
terms and conditions of employment by means of collective agreements.3
11. Access to ‘...voluntary negotiation...’ is denied to workers by a number of mechanisms
contained within the FW Act including the imposition of ‘permitted matters’; the
requirement for individual flexibility arrangements (IFA) which are not negotiated with a
union; restrictions placed on workers freely taking industrial action to further their
interests; latitude given to employer’s to take ‘employer response action’ that
undermines worker’s rights to collective bargaining; an inadequate ‘good faith
bargaining’ framework, and the capacity for Fair Work Australia (“The Tribunal”) to
suspend or terminate industrial action in certain circumstances.
12. Having regard to the ALPs Forward with Fairness statements and the FW Act objects, it
is clear that legislative change has not given full effect to the restoration of workers’
2
3
http://www.ilo.org/declaration/thedeclaration/textdeclaration/lang--en/index.htm
http://www.ilo.org/ilolex/english/convdisp1.htm
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rights. This breaks a significant promise given to the voting public by the ALP in their
2007 election platform and is inconsistent with Australia’s international obligations.
Good faith bargaining
13. Section 3(f) and Part 2-4 of the FW Act sets out what are the good faith bargaining
requirements. Specifically, section 171 of the FW Act sets out the objects of the good
faith bargaining provisions;
171 Objects of this Part
The objects of this Part are:
(a)
to provide a simple, flexible and fair framework that enables collective
bargaining in good faith, particularly at the enterprise level, for enterprise
agreements that deliver productivity benefits; and
(b)
to enable FWA to facilitate good faith bargaining and the making of enterprise
agreements, including through:
(i)
making bargaining orders; and
(ii)
dealing with disputes where the bargaining representatives request
assistance; and
(iii)
ensuring that applications to FWA for approval of enterprise
agreements are dealt with without delay.
14. Whilst aspirational in content, the HSU’s experience in operationalising these provisions
highlights the system is not ‘...simple, flexible and fair...’. Matter B2009/111924
(“Dorevitch”) demonstrates the flaws in a system that does not provide for genuine good
faith bargaining and arbitral powers. In this matter the HSU was engaged in negotiations
for an enterprise agreement with the employer consistent with section 228(1) of the FW
Act. The union provided a log of claims, attended numerous meetings, and provided
documentation to the employer. The employer attended meetings and provided
information regarding what they were not required to do. In relation to wages the
4
Health Services Union Health Services Union Health Services Union-Victorian No. 4 Branch and Jenny
Fraumano and Associates
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employer stated reasons for not making a reasonable wages offer rather than working
with the union to negotiate terms and conditions of employment that positively impacted
on parties to the bargain.
15. Section 228(2) of the FW Act does not require a bargaining representative to make
concessions during bargaining. Given the nature of the employment relationship where
the employer exercises power over the employee, it is not the union as bargaining
representative who will be making concessions. Section 228 in its totality allows an
employer to easily frustrate the objects of the FW Act without breaching good faith
bargaining requirements by taking a minimalist approach to the elements of bargaining
as set out in section 228(1) and not making any concessions as provided for in section
228(2).
16. As agreement was unable to be reached and the HSU exercised rights available under
section 437 of the FW Act and obtained a protected action ballot. The HSU provided the
required three days notice as per section 414 of the FW Act for employee claim action.
The employer responded by invoking section 411 of the FW Act, Employer response
action. By utilising this section of the FW Act the employer is not required to provide
three days notice in contrast with the employees obligation to do so. The HSU submits
this stark legislative distinction fails both the objects of the FW Act as set out in section 3
and specifically section 171(a) of the FW Act.
17. The Dorevitch matter, initiated in 2009, remains on foot. The HSU submits that the power
of arbitration will achieve the objects of the FW Act particularly section 3 (a), (e), (f). We
further submit that the provisions of section 171(a) are not being met, it is inherently
unproductive to have a legislative framework that does not provide for arbitration in
enterprise bargaining to encourage parties to negotiate outcomes recognising the
interests of both parties. Moreover, this position is inconsistent with provisions set out in
section 266 of the FW Act where FWA is required to make a determination where
industrial action has been terminated.
18. In addition to power of arbitration, the current regulatory framework regarding bargaining
must be underpinned by a robust code of conduct that gives genuine expression to the
constituent elements of good faith bargaining.
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Recommendations

The FW Act be amended to include arbitration as a genuine means of settling disputes

The good faith bargaining regime be enhanced by a Code of Conduct that gives effect
to interest based negotiations
Permitted matters
19. Section 172(1) of the FW Act confines collective bargaining to permitted matters thus
curtailing workers rights to negotiate matters freely chosen by the collective. The impact
of this subsection is to deny the fundamental right for workers to collectively bargain for
terms and conditions of employment in contravention of Article 4 of C98.
20. Denying workers and their unions the right to bargain important social and economic
conditions of employment for the benefit of the workplace fails to provide the opportunity
for productive negotiations between parties which can enhance flexibilities within a
specific work environment. If there are to be restrictions on matters contained within
enterprise agreements, these are to be entered into freely by the parties consistent with
Article 4 of C98.
Recommendation

The FW Act be amended to remove provisions limiting the matters worker’s have the
right to bargain over
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Individual flexibility arrangements
21. Section 144 of the FW Act requires a flexibility clause to be included in an agreement
and Section 202 of the FW Act requires an individual flexibility arrangements (“IFA”) to
be a mandatory term of employment. The ‘protections’ set out in section 144 of the FW
Act are superfluous given the employee has no choice but to consider entering into an
IFA. Moreover, given the power imbalance in the employment relationship that favours
the employer over employee hence the need for labour regulation, it is questionable as
to whether genuine agreement can be achieved as conceived in the drafting of the
section.
22. Once contained within an enterprise agreement the IFA is not required to be negotiated
with a union thus breaching Article 4 of C98. Moreover, the AMMA5 in their blueprint
contend IFAs should be a condition of employment with maximum four-year terms and
can only be terminated by ‘...mutual agreement.’ The HSU submits that IFAs in their
current form do not conform to international labour obligations. The suggestion of AMMA
would further deny workers their rights under such instruments.
Recommendation

The FW Act be amended to remove reference to individual flexibility agreements
Transfer of business
23. The HSU submits that the current structure of ‘transfer of business’ provisions are
ambiguous. We accept that current provisions provide for employee entitlements to
5
http://www.amma.org.au/home/publications/AMMA_Paper_IFAs.pdf
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transfer to a new business. However, if there are subsequent transfers of business the
FW Act does not provide for employee’s entitlements to transfer to a subsequent
employer. This can result in long term employees losing accrued and contingent
entitlements upon successive contracts. We are also concerned about the entitlements
of new employees in current transfer arrangements.
24. For instance if company ‘a’ outsources work to a new entity for a three year contract
employee entitlements can transfer to the new employer. If at the expiration of the three
year contract the work, which remains with company ‘a’, is outsourced to a contractor
not connected with the first contractor, employee entitlements do not transfer to the
subsequent entity despite the new contractor having available to them the skills and
knowledge of an experienced workforce.
Recommendation

Transfer of business arrangements include the transfer of entitlements to all contracting
entities
Unfair dismissal
25. The current construction of Part 3-2 of the FW Act for unfair dismissal processes fails to
provide consistent rights to all workers. Excluding high income earners, all other workers
who fall within the definition of employee6 are subject to an arbitrary six or 12 months
exclusionary period depending on the size of their employer. This approach institutes an
artificial divide between workers for no good reason.
26. The HSU contends the minimum 14 day application timeframe should be extended to 21
days. Termination of employment often occurs in a stressful environment. Members
advise us that whilst wanting to pursue their legal rights, a primary focus after
termination is managing personal and family stress when faced with the prospect of no
employment thus no income.
6
Section 380, FW Act
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27. The HSU submits that the administrative process instituted by FWA is inconsistent with
the FW Act and diminishes the rights of an applicant most particularly in circumstances
where an employee has been dismissed due to alleged ‘serious misconduct’. The
ramifications in these instances can be much more severe for workers in general and in
particular for workers in rural and remote areas whose work and community experiences
can be more entwined. In terms of entitlements, if some workers in some states are
dismissed for ‘serious misconduct’ other entitlements such as long service leave are
denied In these circumstances the HSU submits that an applicant be able to elect to
have the matter proceed before a FWA member.
28. It is the experience of the HSU that the initial Conciliation process is focused on getting
a settlement exclusive of reinstatement. This approach lacks the opportunity for the
merits of a case to be tested between the parties, a role which Commissioners are
thoroughly familiar with. The FW Act does not require an applicant to first participate in a
conference conducted by a Conciliator be it via telephone or face to face. Whilst the
HSU agrees that telephone conferences may be appropriate in certain circumstances,
confined primarily to geographic considerations, we do not support the institution of a
process that requires conciliation over conference with a non FWA member7.
29. We further submit the FW Act should be enhanced to ensure a Respondent is required
to provide response material 7 days prior to a matter being convened. It is the
experience of the HSU that Respondent’s rarely provide response material prior to a
matter being conducted by FWA thus disadvantaging the applicant. In addition, we have
had experiences where Respondent’s have not attended conciliations. In these matters
Conciliators do not have the power to compel a Respondent to attend thus further
delaying the period of dispute resolution and diminishing the opportunity for a
reinstatement outcome.
30. In relation to a section 365 general protections application for dismissal, it is our
experience that a significant period of time elapses between the application being the
made and the convening of a conference as required under section 368 of the FW Act.
As a matter of equity for our membership we submit that applications under section 365
7
Section 12 of the FW Act define a FWA member as the President, Deputy President, Commissioner, or
Minimum Wage Panel member.
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of the FW Act should be heard expeditiously to take advantage of the window of
opportunity to have reinstatement as a priority in the process.
Recommendations

Unfair dismissal remedy to be available to all employees

Application time to be extended to 21 days

Applications for alleged ‘serious misconduct’ to be heard by a FWA Member as defined
in section 12 of the FW Act

Applicant may choose to have matter heard by a Conciliator and under what conditions
Right to representation
31. Fundamental to a worker’s right to be represented is free access to their
representatives. Article 8 of ILO Convention 87 elucidates this right;
Article 8
1. In exercising the rights provided for in this Convention workers and employers
and their respective organisations, like other persons or organised collectivities,
shall respect the law of the land.
2. The law of the land shall not be such as to impair, nor shall it be so applied as
to impair, the guarantees provided for in this Convention. 8
32. The Committee of Experts on the Application of Conventions and Recommendations
(CEACR) in its 80th session of 2009 commented on Australia’s right of entry provisions in
relation to C87 thus;
The Committee recalls that it previously raised the need to amend the restrictive
conditions set for granting a permit allowing trade union representatives to have
entry to the workplace in order to meet with workers. The Committee notes that,
under the Fair Work Act, a union official must hold a permit provided by the FWA
in order to have the right of entry under the Fair Work Act for a certain workplace.
8
http://www.ilo.org/ilolex/english/convdisp1.htm
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In determining whether to grant an entry permit, the FWA will consider any matter
it considers relevant, including whether the applicant has ever been convicted of
violating an industrial law or convicted of a crime involving fraud, entry onto
premises, or intentional use of violence or destruction of property (section 513).
The Committee notes that the Government indicates that the Fair Work Act
permits union officials to hold discussions with employees who are members, or
eligible to be members, of a union and to enter workplaces to investigate
suspected breaches of the Act or an instrument made under the Act (emphasis
added). The Committee requests the Government to provide information on
the practical application of this provision, including statistics relating
thereto9.
33. Section 480 of the FW Act sets out the objects of right of entry provisions;
480 Object of this Part
The object of this Part is to establish a framework for officials of organisations to
enter premises that balances:
(a) the right of organisations to represent their members in the workplace,
hold discussions with potential members and investigate suspected
contraventions of:
(i) this Act and fair work instruments; and
(ii) State or Territory OHS laws; and
(b) the right of employees and TCF outworkers to receive, at work,
information and representation from officials of organisations; and
(c) the right of occupiers of premises and employers to go about their
business without undue inconvenience.
34. The HSU submits that in practical terms the current construction of right of entry
provisions contained within the FW Act does not provide rights to employees to have
access to information and representation from officials of their employee organisation.
The HSU has experienced instances where employers have refused to notify workers of
the union’s presence in a worksite, have not displayed union notices advising location
and meeting times, have not provided a room fit for purpose and, have attempted to
deny the union the right to enter workplaces which are also residences10.
9
http://webfusion.ilo.org/public/db/standards/normes/libsynd/index.cfm?Lang=EN&.hdroff=1
Section 493 of the FW Act restricts right of entry to ‘residential premises’
10
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35. The HSU covered workforce is undergoing enormous change as a result of policy and
funding direction in the industry. Increasingly Disability and Aged Care work is taking
place in home care settings be they individual residences or residential group homes.
For our members these are their workplaces. The HSU submits that right of entry
provisions should be strengthened to recognise the myriad workplaces in the community
and give genuine effect to the rights of workers to have access their industrial
representatives.
Recommendations

The FW Act be amended to include obligations upon employers to notify workers of
impending union visits

The FW Act be amended to ensure the employer is requreid to notify employees of their
right to attend and participate in union meetings

The FW Act be amended to give primacy to employee’s workplaces
Fair Work (Transitional provisions and Consequential Amendments) Act
2009
36. By operation of Schedule 3 of the Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009 (“the Transitional Act”) preserved collective state agreement
continue in force and are not replaced by modern awards. Item 28(1) of Schedule 3
provides that a modern award does not apply to an employee whilst a preserved state
agreement (“a PSA”) continues to apply to them.
37. This issue came to light when the Private Hospital (Named Respondents) (State) Award
(“the PH Award”) was designated by Fair Work Australia as a NAPSA. The relevant
employer association made a submission during the termination of instruments
proceedings that it was not a “modernisable instrument” as defined in Schedule 5, Part
2, Item 3 of the Transitional Act.
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38. To determine whether the instrument above was a NAPSA or PSA, the following
submissions were accepted:
(a) as at 26 March 2006, the PH award applied to a group of employees constituted
wholly or partly by employees of a constitutional corporation , in respect of which an
enterprise agreement could have been made by reference to s 30(1)(b) of the Industrial
Relations Act 1996 (“IR Act”) (see s 44C(1)(a) of the IR Act);
(b) as at 26 March 2006, the parties set out in clauses 2 and 52 of the PH award are
limited to the kinds of persons that could have been parties to an enterprise agreement
by reference to s 31, in respect of relevant employees (see s 44C(1)(b) of the IR Act);
(c) the PH award only binds those parties to whom the award was made (see s
44C(1)(c) of the IR Act);
(d) the PH award is a consent award (see ss 44C(1)(d) and 44C(2)(a) of the IR Act);
(e) given the satisfaction of s 44C(1)(a) to (d) of the IR Act, s 44C(3) operates,
immediately before “reform commencement” under the (repealed) Workplace Relations
Act 1996 (the WR Act) (ie immediately before 27 March 2006) to convert the PH award
into an “enterprise agreement” for the purposes of the IR Act;
(f) an enterprise agreement made under a State or Territory industrial law falls within the
definition of “State employment agreement” under s 12 of the WR Act;
(g) Schedule 8, Division 2, Clause 10 of the WR Act created “preserved collective State
agreements” (being the collective version of a PSA) from relevant State employment
agreements (such as the PH award) on 27 March 2006;
(h) being a PSA, the PH award cannot be a Notional Agreement Preserving State Award
(NAPSA).
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39. On the basis of the above, VP Watson did not terminate the instrument stating that it
was a PSA11. Another example of a PSA which affects our membership is the Private
Ambulance Service Providers Consent (State) Award which provides for rates of pay
which have not been increased since 2006 and are lower than the corresponding
minimums in the Ambulance and Patient Transport Industry Award 2010.
Preserved state agreements are frozen and often have not provided wage increases for a
number of years. The effect of this regime is to provide a loophole causing state based
differences and inequities. Enterprise bargaining is very difficult in the private hospital sector
and employees rely substantially on the minimum safety net. That minimum safety net is
below the safety net provided by the relevant modern awards.
40. We would submit that such PSAs should cease to operate allowing the modern awards
to apply to the affected employees.
Recommendations

The FW Act be amended to provide for the cessation of relevant preserved state
agreements.
Building and Construction Industry Improvement (Transition to Fair
Work) Bill 2011
41. The HSU presses its objection to the unjustifiable treatment of workers in the
construction industry. All workers in Australia must enjoy the same freedoms and
protections in their employment. The HSU supports the abolition of the Office of the
Australian Building and Construction Commissioner (“ABCC”) and all offending
legislation that creates an artificial distinction between the rights of workers.
42. We contend the recent steps for legislative reform do not ameliorate the rights of
construction workers as unjustifiable coercive power remain.
11
[2011] FWA 5448
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Conclusion
43. The HSU welcomes changes in the FW Act as a means of improving the rights of
workers however, in its current form whilst an improvement to the “WorkChoices”
regime, the FW Act does not evenly balance the rights of workers with the rights of
employers. The HSU submits recommendations contained within this submission will
further enhance the relationship between workers and employers.
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