National Tertiary Education Industry Union (NTEU)
(Grahame McCulloch, General Secretary)
Submission to the Fair Work Act Review Panel
February 2012
Contents
About the NTEU .................................................................................................................................. 2
A.
General Comments ..................................................................................................................... 2
1.
The Transition from WorkChoices .............................................................................................. 2
2.
Fair Work Act Fails to Meet Australia’s International Obligations ............................................. 3
B.
Specific Issues which NTEU Wishes to Raise ....................................................................... 4
1.
Encouraging Secure Employment, Genuine Flexibility and Non-Discrimination Based on Type
of Employment ............................................................................................................................ 5
2.
Requirement to End All Industrial Action rather than that which Threatens or “Has
Threatened” Health Safety etc.................................................................................................. 10
3.
The Effect of the Compression of Relativities on the BOOT test .............................................. 11
4.
Section 386 and Drafting Error ................................................................................................. 13
5.
Representation by Lawyers and Paid Agents ............................................................................ 15
1
About the NTEU
The National Tertiary Education Industry Union (NTEU) represents over 25,000 staff employed in
tertiary education in Australia. Tertiary education includes Higher Education, Vocational Education
and Training (VET) and Further Education. Tertiary education covers a wide range of institutions that
deliver post-secondary education, including universities, TAFEs and other education providers. The
Union’s coverage also includes research centres and institutes that drive Australia’s national
innovation, research and development effort.
The workers who make up our sector are diverse. They include academics across all disciplinary
areas, world-renowned experts and public intellectuals, laboratory technicians and librarians, staff
who work for student unions, as well as staff who work at student centres. The NTEU has exclusive
coverage of academic staff, and complete coverage of general staff. From industry experts to
electricians to postgraduate tutors, these workers fall within the NTEU’s coverage.
A. General Comments
1. The Transition from WorkChoices
With the exception of the removal of the right of Unions to be a party to an Agreement (Fair Work
Act 2009 (the Act) s.172; Workplace Relations Act 1996 (WRA) s.328), there is no material way in
which the Act is inferior to the previous “WorkChoices” legislation (2006-2009). Although not
directly relevant to this Review, it should be noted that for higher education employees, the Higher
Education Workplace Relations Requirements (HEWRRs) operated in conjunction with WorkChoices
to deny higher education employees the right to free collective bargaining, and were the subject of a
specific complaint to the ILO Committee of Experts.1
The Act represents a significant improvement as compared to the previous regime. Of most practical
importance to the NTEU and its members have been:
1

The removal of statutory individual agreements;

The rights which attach to bargaining representatives;
International Labour Organisation (ILO), CEART/9/2006/10.
2

The removal of “prohibited matters” from enterprise agreements;

Improvements in the procedures for settling disputes under enterprise agreements; and

The replacement of a very patchy Award system for private providers of tertiary education
with the comprehensive (in content if not in coverage) Educational Services (Post-Secondary
Education) Award 2010
Nevertheless, the Submission which follows includes some sharp criticism of the Act and how it has
operated. Despite this, NTEU would be very concerned if these criticisms were misinterpreted in a
way which could aid the supporters of the previous “WorkChoices” legislation of 2006-2009.
2. Fair Work Act Fails to Meet Australia’s International Obligations
The Government has rightly included in the terms of reference consideration of Australia’s
“international obligations”. This is obviously a reference to the Conventions of the International
Labour Organisation which Australia has undertaken to uphold and reflect in its legislation. NTEU
submits that the proper approach to the question “Does the Fair Work Act adequately take account
of Australia’s international labour obligations?” should be to report on the extent to which the Act
complies with those obligations.
The answer to that question remains that Australia is egregiously in breach of a number of core
labour standards and remains a “rogue nation”. NTEU does not propose to recount in detail all of the
breaches of Australia’s obligations under ILO Conventions. These are well set out in the ETU
Complaint to the ILO regarding Freedom of Association 13 February 2009,2 the substance of which
was well summarised in the 357th Report of the Committee on Freedom of Association – ILO - (June
2010) at page 39, as follows:
In particular, the FWA remains in violation of freedom of association by:
(1) giving primacy to enterprise-level agreements and restricting the level at which bargaining
can occur;
(2) limiting the content of agreements;
2
http://www.etu.asn.au/files/pdfs/fair-work-bill-campaign/ilo_application_attachment_AParticulars_of_complaint-20_feb_09.pdf
3
(3) providing insufficient protection to unionised workers who take industrial action in support of
their rights under the Conventions;
(4) limiting the right to organise;
(5) restricting the right to strike beyond the limits permitted by the Conventions and lifting the
protection of several types of industrial action, including sympathy strikes and those in
support of multiple business agreements, “pattern bargaining”, matters that are not
“permitted”, and strike pay;
(6) prohibiting industrial action in situations of “economic harm” and danger to the economy,
including through the introduction of compulsory arbitration at the initiative of the Minister;
and
(7) imposing penalties for engaging in “unprotected” industrial action and introducing secret
ballot provisions. The complainant further maintains that the Bill‟s structure requires
employers to bypass unions and make and reach agreements directly with employees, even
where a union exists at the workplace.3
NTEU endorses the broad thrust of that Complaint and notes that the response by the Australian
Government did not address the specific criticisms of the (then) Fair Work Bill, merely drawing to the
Committee’s attention in most cases, as its defence, that the previous legislation was even worse.
Certainly, even the most cursory examination of Chapter 10 (Right to Strike) and Chapter 15
(Collective Bargaining) of the Digest of decisions and principles of the Freedom of Association
Committee of the Governing Body of the ILO indicate that the Complaint made by the ETU is
justified.4
B. Specific Issues which NTEU Wishes to Raise
The NTEU is aware of the number and size of submissions likely to be made to the Review. With this
in mind, NTEU has decided to concentrate on a few issues which are less likely to be repeated by
others, or where the Union has specific experiences under the Act which form the basis of the points
3
http://www.ilo.org/wcmsp5/groups/public/@ed_norm/@relconf/documents/meetingdocument/wcms_1420
21.pdf
4
Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO
(Fifth (revised) edition, 2006) Chapters 10 and 15. See http://www.ilo.org/wcmsp5/groups/public/--ed_norm/---normes/documents/publication/wcms_090632.pdf
4
we raise. This does not mean that there are not other specific issues which we could have raised.
Rather, we hope that our relative brevity may be rewarded with close attention.
1. Encouraging Secure Employment, Genuine Flexibility and NonDiscrimination Based on Type of Employment
As has been widely noted in the academic literature, casual employment in particular is at very high
levels in Australia as compared to international standards.
Nevertheless, much of what is called “casual” employment is not casual at all, and much “fixed
term” employment goes on from contract to contract, sometimes for more than a decade. For
example, in higher education and in the State and Territory VET systems, the great majority of casual
employment is not in work which is genuinely “casual” at all. Many examples can be found of
“casual” employees with 5, 10 or even 15 years of ongoing casual service.
The suggestion is made in some quarters that the high level of casual employment reflects
“employee choice”. It is very rare of course that anyone has ever been offered the actual choice. We
do have evidence from a 2007 ABS question on preference for casual employment that "52% of all
casual employees reported that they would prefer not to work on a casual basis even taking into
account the effect this may have on their income".5
During the “long boom” until the 1980s, casual and fixed term employment were largely residual
forms which were used for genuine ad hoc or short-term employment, or were a form of indirect
discrimination (partly enforced by unions), often associated with restrictions on part-time
employment, or were used to deal with special circumstances in a particular industry, an example of
which was the provision of residual teaching work for postgraduate students to supplement their
income.
Certainly in the post-compulsory education sector, the use of casual employment has now ceased to
be an imperative to meet organisational needs. The use of insecure employment has become an
organisational strategy in its own right, used in order to avoid employee entitlements and to shift
the burden of business uncertainty entirely onto employees. Taking Universities as an example,
5
Reported in ABS cat. no. 1370.0 (2010).
5
barely one-third of all employees have ordinary continuing employment in an industry with a
remarkably stable revenue stream and relatively small fluctuations in activity, certainly compared to
most other industries. Universities state quite openly that their employment mix is about
transferring the risks of potential instability from employer to employees.
While in theory unions can bargain to restrict the use of casual employment, in the NTEU’s
submission it should not be necessary to bargain for basic community standards such as sick and
carer’s leave, bereavement leave or annual leave on behalf of employees who are not really casual
at all, but have in most cases been unilaterally deemed to be casual by their employer.
NTEU accepts and has always done so, the need for the use of casual and fixed term employment to
meet the genuine operational needs of employers, and even in rare cases, the preferences of
employees, or to meet the particular circumstances of an industry.
However, “Casual” and “fixed term” and “temporary” should describe a type of work, not a type of
employment contract.
At a minimum, the Fair Work Act should embody two principles in the Award stream:

That the use of casual, fixed term and temporary employment should be the
exception to ordinary ongoing employment, the use of which justified by
particular circumstances to be established in Modern Awards on an award-byaward basis, having regard to the circumstances of the relevant industry or
occupation covered by the relevant Award.

An employee employed on a part-time, casual, fixed term or temporary basis
must not be worse off overall in relation to the conditions of employment
(including remuneration) under the Award, than a relevant full-time
continuing employee.
To give effect to these, NTEU recommends the Fair Work Act 2009 (FW Act) be amended to
incorporate a reference to a secure employment principle.
6
Part 2-3 of the FW Act deals with the operation of modern awards. The modern award objective in
section 134 should be varied to include reference to the need to promote secure employment
through the secure employment principle.
Section 134 should be amended by the addition of a sub-section (3) in the following terms:
Modern awards secure employment principle
(3) In making, varying or reviewing modern awards, FWA must give effect to the secure employment
principle. For the purpose of this section, the secure employment principle means that;
(a) The normal form of employment should be continuing employment rather than casual, fixed
term or temporary employment, subject to the following:
i.
The established need for genuinely short term or ad hoc employment to meet the
genuine operational requirements of an employer or industry;
ii.
The need to allow for seasonal or fluctuating employment in an industry or enterprise, to
the extent that part-year or annualised arrangements are not practicable or appropriate,
or not in the interests of employees;
iii.
Appropriate accommodation of employment on projects of limited duration, or
replacement of employees on leave, or like circumstances;
iv.
Traineeships, apprenticeships, cadetships, internships or like arrangements where the
relevant employees gain significant skills or experience which outweighs any
disadvantage caused by a lack of job security;
v.
The wishes of the majority of the relevant employees, and their representatives, in
circumstances where FWA is satisfied that arrangements involving the use of noncontinuing employees involve an clear overall advantage to employees, including those
in less secure forms of work;
7
vi.
Arrangements to ensure any employee who was in a particular type of employment as at
the [commencement of this sub-Section] and wishes to remain in that type of
employment can do so;
vii.
Any necessary or desirable transitional arrangements which are deemed appropriate
when any Award provision is made or varied under this Sub-Section.
and;
(b) Casual, fixed term, temporary and like employees who will be covered by the modern
award will not be worse off overall in relation to conditions of employment regulated by the
Award or the NES than comparable continuing employees are, or if there are no comparable
continuing employees, to a continuing employee who might be, employed in the same
circumstances to do the same work.
The proposed new Section 134 (3) (a) is relatively conservative in that it completely avoids a onesize-fits-all approach and allows the specialist tribunal – FWA – to take an industry-by-industry
approach. It may well be that under proposed Section 134 (3) (a), in some industries or occupations,
continuing employment would remain rare. This would not necessarily be inconsistent with the
application of the secure employment principle. Moreover, the proposed 134 (3) (a) (vi) provides for
a universal grand-parenting of any person employed at the time of commencement of the provision,
who wishes to remain, for example, a casual employee.
Moreover, it is not proposed that the provisions of the proposed Section 134 (3) (a) be mandated in
the bargaining sphere. However, the establishment of the secure employment principle in the award
sphere would mean that employers would be bargaining for more insecure employment, rather than
unions having to bargain for basic community entitlements like annual leave, for employees with
years of continuous service.
Nevertheless, the principle that employees should not be discriminated against on the basis of being
fixed term or casual “overall” is proposed by the NTEU to operate in the bargaining sphere as well as
in the Award stream.
8
The secure employment principle would then be reflected in other relevant sections of the FW Act
including Part 2-4 Enterprise Agreements. The NTEU recommends that the general requirements for
the approval of an enterprise agreement by FWA be amended to provide the following:
186(2)(d) the agreement passes the better off overall test and does not disadvantage precarious
employees. [new text in bold]
A corresponding new provision in relation to passing the better off overall test could be included in
Section 193 as follows:
193(1A) An enterprise agreement is taken to disadvantage precarious employees if casual, fixed term
part-time and/or temporary employees would be worse off under the enterprise agreement than a
comparable full-time continuing employee employed under the enterprise agreement or, if there are
no comparable continuing employees, compared to a full-time continuing employee who might be
employed in the same circumstances to do the same work.
While it is legitimate for an employer to bargain hard over wages and conditions, there can be no
justification for discrimination in remuneration and conditions overall as a “package” as between
different types of employment for employees performing work in the same classification. For
example, in higher education, Awards and Agreements are permitted which exclude casual
employees from rights which attach to other employees, even though those exclusions have nothing
to do with the casual nature of the employment. Common examples include access to enhanced
superannuation, access to experience payments or incremental progression, the right to promotion
or to have the classification of one’s position assessed or reviewed, or the right to be consulted
about workplace change. What is proposed here is not even necessarily that all rights extended to
permanent employees should be extended to non-casual employees. To do that may in many
circumstances may be inappropriate or may in fact undermine the actual character of the
employment relationship. Rather, NTEU is proposing that FWA should be satisfied that, under the
Agreement, casual, fixed term and temporary employees should not be worse off “overall”.
In some industries and in some circumstances, especially in the past, unions must bear some of the
responsibility for the unjustified discrimination against casual employees, just as they bear historical
responsibility for past discriminatory provisions which adversely affected women or indigenous
workers. Given the preponderance of women and young people among the casual workforce,
9
discrimination in remuneration against casuals, fixed term and part-time workers doing the same job
is likely to be a covert form of sex or age discrimination.
For Australia to adopt an approach of limiting discrimination based on type of employment would
not leave us in a unique position. The United Kingdom, as well as the rest of the European Union has
adopted similar regulation. The Part-time Workers (Prevention of Less Favourable Treatment)
Regulations 2000 (UK) requires that employers give people on part time contracts equal pay to
people on full time contracts who do the same jobs. It implements EU Directive 97/81/EC and forms
part of the European Union’s programme to combat discrimination of atypical workers. Because the
large majority of part time workers are female, it is also an important attempt to combat sex
discrimination.
2. Requirement to End All Industrial Action rather than that which
Threatens or “Has Threatened” Health Safety etc
In National Tertiary Education Union v University of South Australia [2010] FWAB 1014 a Full Bench
of FWA on appeal considered the meaning of Section 424 of the Act, in circumstances where a wide
range of protected industrial action was taking place but only a small fraction of that industrial
action was found to threaten the health safety or welfare of the population or part of the population
(Section 424 (1)). The Full Bench found that even in these circumstances, all protected industrial
action must cease.
NTEU is not here disputing the correctness of the Full Bench’s Decision. However, the implications of
this would seem to take the provision beyond anything that could be considered reasonable.
To take a more extreme hypothetical example, if 500 bus drivers have been on strike for a week, and
one of these bus driver’s usual duties is to transport severely disabled children to day care, then
assuming this is found to be a threat to “welfare”, the industrial action of all 500 bus drivers must be
suspended or terminated. This only has to be stated to seem obviously unjust.
Moreover, using the same example, if the union had been contacted on the second day of the strike
about the needs of the disabled children, and as a result the relevant bus driver returned to work
transporting the disabled children a week before the Section 424 application had even been made,
then because of the requirements of Section 424 (1) that “if FWA is satisfied that the protected
10
industrial action has threatened, is threatening, or would threaten. . .” (emphasis added), the
tribunal would have to suspend or terminate all the bus drivers’ action. This takes the law from
injustice to absurdity.
These provisions are totally at odds with the relevant ILO jurisprudence which emphasises that the
purpose of limitations on the “right to strike’ should be for the purpose of securing a minimum level
of service necessary to public safety and health.6
FWA should only be empowered to make such orders as are necessary prospectively to avoid the
harm to safety, etc. In some cases this may require the complete cessation of a particular type of
action, and in others it may require an order, for example, that at least 25% of flights should
operate.
If this approach were followed, and FWA were required only to terminate that part of the industrial
action which is found to have the requisite harmful effect under Section 424 (1), the question would
arise in these circumstances as to whether this should lead to arbitration. In these circumstances,
NTEU submits, the Act should provide that primacy should be given to the views of the bargaining
representatives of employees whose action has precipitated the Order (either directly or as a result
of employer response action), in determining whether there should be arbitration. If those
bargaining representatives considered that they wish to continue the industrial action which has not
been stopped by orders of FWA, they should be generally entitled to do so. If they are of the view
that the orders essentially deny them the capacity to pursue their claims, then they should be
entitled to arbitration, which would then mean the end of all industrial action.
3. The Effect of the Compression of Relativities on the BOOT test
There has been considerable discussion in recent years about the effect of the compression of award
relativities consequent upon the granting of “flat dollar” components over many years under what is
now called the Annual Wage Review. [FWA Annual Wage Review 2010-11 (C2011/1) 3 June 2011; at
paragraph 4]. While the NTEU is not happy about this compression and believes that it undermines
the relevance of Awards generally, that is not the point of this submission.
6
Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO
(Fifth (revised) edition, 2006) paras 604-614. See http://www.ilo.org/wcmsp5/groups/public/---ed_norm/--normes/documents/publication/wcms_090632.pdf
11
NTEU’s concern is about the operation of the better-off-overall-test (BOOT) test under Section 193,
in circumstances where the actual rates of pay under the Award have been so “compressed” as to
make it almost impossible for an Agreement to fail that test.
For example, the rates of pay for a commencing school teacher under the Educational Services
(Teachers) Award 2010 is as low as $40,988 per annum. This is an entirely irrelevant rate – the actual
rates of pay in the market and in enterprise agreements for this category is generally between fifty
five and sixty thousand dollars. For teachers at the top of the incremental scale, the difference
between the Award rate and the “going rate” will generally be in the range of 40-60%. In this
context, it is almost impossible to imagine how an Agreement being scrutinised under the BOOT
could fail.
So, for example, if an employer held out against a pay increase for three years, it may well finally get
employees to vote for an Agreement which increased teaching workloads (not even regulated by the
Award) by 20%, and still pass the BOOT, because the rates of pay which entered into calculation of
the BOOT are still more than 20% below the rates in the proposed Agreement.
Examples of the operation of this approach can be found in cases which have very adversely affected
NTEU members.7
In each of those cases, the deprivation of job security – the most important industrial right conferred
by the Modern Award – was in the Tribunal’s view readily offset by the very large gap between what
were manifestly irrelevant award rates, and the salary rates in the Agreement.
NTEU submits that in nearly all cases, the Act currently deprives professional employees and those
above (say) 130% of the award trades rate, the benefit of the BOOT Test.
In NTEU’s submission, one way in which this might be addressed would be by amendments to
Section 193. One would be to add a new Sub-Section 193 (8) as follows:
7
See UNIVERSITY OF NEW SOUTH WALES (PROFESSIONAL STAFF) ENTERPRISE AGREEMENT 2010 16 December
2010 [2010] FWAA 9588, paras 96-100; UNIVERSITY OF WOLLONGONG (GENERAL STAFF) ENTERPRISE
AGREEMENT 2010 [2011] FWAA 469, paras 7-8.
12
193 (8) Where the relevant Award rate of pay is more than twenty percent lower than the actual
ordinary rates of pay that an employee or employees are receiving at the time that the better off
overall test is being applied, then for the purpose of determining whether an Agreement passes the
better off overall test, unless there are special circumstances why it should do otherwise, FWA shall
deem for that purpose that the award rate of pay is twenty percent less than the actual rate of pay.
4. Section 386 and Drafting Error
There is a fatal and almost certainly unintended flaw in Section 386 of the Fair Work Act 2009 which
allows for abuses already widely evident in the education industry to readily become a major reason
for the excessive use of limited term contracts as well as a means of effectively avoiding the unfair
dismissal jurisdiction.
Section 386 of the Act says as follows:
386 Meaning of dismissed
(1) A person has been dismissed if:
the person's employment with his or her employer has been terminated on the employer's initiative;
or
the person has resigned from his or her employment, but was forced to do so because of conduct, or
a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
the person was employed under a contract of employment for a specified period of time, for a
specified task, or for the duration of a specified season, and the employment has terminated at the
end of the period, on completion of the task, or at the end of the season; or
the person was an employee:
to whom a training arrangement applied; and
whose employment was for a specified period of time or was, for any reason, limited to the duration
of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
13
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in
paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that
kind is, or was at the time of the person's employment, to avoid the employer's obligations under this
Part.
Sub-sections 386 (1) and 386 (2)(a) are really just statutory restatements of the common law
position. This is supported by the Explanatory Memorandum of the FW Act at 1528-1532.
The real concern is, however, with Section 386(3). The Explanatory Memorandum, at 1536 says:
Subclause 386(3) is an anti-avoidance rule. It provides that where a substantial purpose of a person’s
engagement on a contract for a specified period of time, task or season is to avoid the employer’s
obligations under the unfair dismissal provisions, then paragraph 386(2)(a) does not apply.
The fatal problem with Section 386 is that it can never have any effect whatsoever. If an employee’s
employment terminates in the circumstances set out in 386(2)(a), then it is clear that that employee
can never be as described in 386(1). This is because that employee’s employment has not been
terminated on the employer’s initiative but has come to an end by the effluxion of time or the
completion of the task or season – these are the only circumstances covered by 386(2)(a).
It therefore follows that 386(3), which says only that 386(2)(a) does not apply where this is done to
avoid the unfair dismissal jurisdiction, does not have the intended effect of bringing such employees
within the unfair dismissal jurisdiction because no such employee could ever satisfy the inclusive
definition of dismissal in Section 386(1). It therefore follows that there is no person to whom 386(3)
could provide a benefit as it is definitionally impossible.
So long as it remains a requirement that dismissal be at the initiative of the employer (including
constructive dismissal) then the scope of the jurisdiction cannot overcome sham fixed term
contracts.
The NTEU proposes that this obvious flaw should be removed as follows:
386 (3) Despite sub-sections (1) and (2) a person has been dismissed if:
a) The person was employed under a contract of the kind referred to in (2)(a); and
b) The employment has terminated at the end of the period, on the completion of the task, or at
the end of the season; and
14
c) A substantial purpose of the employment of the person under a contract of that kind is or
was at the time of the person’s employment, to avoid the employer’s obligations under this
Part, or under the Part 2-2 of the Act [the National Employment Standards].
NTEU does not see this as an “education-specific” amendment, but can illustrate the need for it in
the context of our industry. With the passage of the FWA, the previous exclusion of “probationers”
from the unfair dismissal jurisdiction has been replaced with the exclusion of employees with less
than 6 months’ service. This has brought many academic probationers (who typically have probation
periods of 12 months to 5 years) back within the scope of the unfair dismissal jurisdiction. In
enterprise bargaining in 2010-2011, the University of NSW was determined to seek an exemption
from the restrictions on fixed term employment (of the type initially included in the Higher
Education Contract of Employment Award 1998), which exemption would allow a new employee to
be engaged on a fixed term contract, instead of as a probationary employee. The University was
absolutely explicit that the reason it wanted to do this was so that such employees would not have
access to any remedy for unfair dismissal.
The NTEU submits that a non-renewal of a fixed term contract should also fall within the jurisdiction
of the unfair dismissal regime if it was entered into for the purpose of avoiding NES entitlements
such as redundancy, parental leave or long service leave. Without such a right, the employee, for
example, who is employed on 9.5 years of limited term contracts, and is not renewed because of a
pending entitlement to long service leave, has no remedy as the employee does not meet the
definition of adverse action in Section 342.
5. Representation by Lawyers and Paid Agents
Section 596 of the Act requires that representation by counsel, etc, can only occur with the
permission of FWA. The Explanatory Memorandum states as follows: 2291. FWA is intended to
operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons
dealing with FWA would generally represent themselves. (emphasis added)
NTEU appears fairly regularly in FWA proceedings, and has the clear perception that the emphasis
on self-representation has had almost no effect on the operations of the tribunal. In the NTEU’s
experience, employers having between $200m and $1bn in turnover regularly turn up to conciliation
proceedings armed with lawyers who “are instructed” that their clients, despite having lawyers on
staff and human resources professional earning large salaries, are incompetent to represent
15
themselves. It is very rare that lawyers or paid agents add anything to conciliation proceedings, in
terms of the “efficiency” (FWA 596 (2) (a). Nevertheless, in the NTEU’s experience and in that of
other unions:

Tribunal members, even in conciliation, still assume that it requires the non-represented
party to object and make a case why legal representation should not be permitted, contrary
to the plain intention of the Act;

Tribunal members have said words to the effect “You can object if you like, but I am going to
let them in”;

Tribunal members have said words to the effect: “Well, I would not have let them in, but
they are here now and I would have to give them an adjournment if I did not allow them
legal representation”.
NTEU appears in conciliation proceedings where only lawyers speak for a large university employer,
and in response to a direct question of fact, to which everyone else in the room knows the answer,
the lawyers state that “they have no instructions on that matter”.
Clearly, the intention of the Parliament, as expressed in the Explanatory Memorandum and the Act
itself, is being frustrated. The Act should be further amended to achieve the Parliament’s intention.
Sub-Section 596 (2) (a) should be amended to read:
(a) It would enable the matters to be dealt with more efficiently, in circumstances where there
are complex legal questions to be decided; or
The Explanatory Memorandum accompanying such an amendment should, at the very least, state
that legal representation should be permitted in conciliation proceedings in rare and exceptional
circumstances.
To establish transparency about whether the Parliament’s intention that “Persons dealing with FWA
would generally represent themselves”, the Act or Regulations should also be amended to require
that FWA annually publish statistics on the number of applications for leave and the number of
those applications that were granted.
16