The Fair Work Act (Cth) was introduced by the Labor government in 2009 to replace the previous unpopular Work Choices legislation. The following is an assessment of the impact of this legislation on Australian workplace employees in two categories: the rights of employees and the protections afforded employees. For the purposes of this evaluation the most up to date Oxford Dictionary definitions have been used to define these categories. Through this, an employees rights afforded by the Fair Work Act refer to the “moral or legal entitlement to have or do something” (Oxford Dictionaries, 2010) with specific emphasis on the legal entitlement, whilst an employees protections afforded are “a legal or other formal measure intended to preserve civil liberties and rights” (Oxford Dictionaries, 2010). To understand the impact Fair Work Act had on Australia, an understanding on the industrial environment it was brought into will first be introduced explaining its origins, content and intentions. There will then be a discussion in terms of employee rights and protections and how they have been affected in reality compared to on paper followed by an assessment of the extent of these impacts on Australian workplace employees.
Background of the Fair Work Act
For several years before the introduction of the Fair Work Act national Australian election campaigns have been significantly focused on industrial relations issues (Cooper, 2009). Through this the Labor government and the different Union organizations of Australia, despite its popularity at inception, had repeatedly pointed out the flaws of the existing Work Choices system and many argued it created an environment where employers had an uneven amount of power over employees (Fenwick 2006; Stewart 2006). This lead to a political environment where industrial legislation was a particularly high-pressure topic with numerous conflicting parties to attempt to satisfy. Cooper (2009) discusses the ‘ambitious goals’ (p. 264) of the then Minister for Employment and Workplace Relations Julia Gillard to modernize the award system in a way that pleased both employees and employers.
The Fair Work Act sought to improve the rights and protections afforded to Australian workplace employees, one of the main articles designed to do this was the introduction of the National Employment Standards (NES). There are ten NES that were introduced as part of the Fair Work Act including a maximum on weekly hours worked, the right to flexible working hours when needed to care for a under school aged or disabled child and 24 months parental leave entitlement (full list Appendix A). The FWA also included causes on unfair dismissal, industrial action and the introduction of enterprise agreements to give employees more flexibility and say in their employment. The actual impact and change these new industrial legislations made however, is still highly debated by politicians and scholars alike.
Fair Work Act and Employee Workplace Rights
Improving the rights of Australian employees in the workplace was one of the central goals of the Fair Work Act as many Australians believed employers had to much power over their employees which forced them to agree to both hours and conditions that did not meet their expectations. Cooper (2009) discusses this as legislation prior to the Fair Work Act “undermined rights” of workers (p. 286) giving them significantly less in control of their own workplace choices and allowing unfair dismissals to go unchecked.
The right to organise was one of the more significant changes to employee rights under the new Fair Work Act. Previous legislation was particularly strict about union interaction with the workplace and it was discouraged by both industrial relations law and employers, however the Fair Work Act not only supports union involvement but specifically encourages it in two ways, the first being enterprise agreements (discussed in the protections section of this paper) and the other being the right to organise. Employees can now bring union representatives to their place of work and talk with them during breaks if needed, though notice is needed 24 hours in advance. Kearney (2011) discusses how this is a significant improvement and having a positive impact on union participation, however there are still many issues to be resolved.
The right to collective bargaining is the other major change that the Fair Work Act introduced that is having a significant impact on Australian workplace employees. The Fair Work Act returned many of the rights of employees that Work Choices took away in 2006, some of these include the introduction of the new Award safety net and Fair Work Australia (to ensure employee rights are met) and the right of low paid workers to collectively bargain. Since this was introduced there has been a reduction in the number of working days lost to industrial disputes (Australian Council of Trade Unions, 2009) of over a day per 100 people, through this we can see there has been a positive impact on employers respecting the rights of their employees.
Fair Work Act and Employee Workplace Protections
The protections afforded to employees in the Australian workforce were significantly strengthened with the introduction of the Fair Work Act in 2009. The main areas of impact were in regards to the protection of employees from unfair dismissal, and increase in minimum wage and protection from further unfair changes and the elimination of unfair individual contracts (AWA’s).
Employee protections against unfair dismissal have been one of the major areas of impact for the Fair Work Act, especially in comparison to the unbalanced dismissal laws of Work Choices (Sutherland & Riley, 2010). New regulations protect all employees that have been employed for longer than 12 months from unfair dismissal and have had a significant impact in helping prevent the unfair dismissal of elderly, disabled or female employees on unjust grounds (Gray, 2011). These employees are now able to make an unfair dismissal claim for any of these cases (even small business employees) and it is considered an adverse action and has had an important impact in the protections afforded employees who face unfair or unlawful dismissal.
Gray (2011) discusses one of the first cases ruled in favour of adverse action Barclay V Board of Bendigo Regional Institute of Technical and Further Education  FCAFC. In this case an employee (Barclay) of the Board of Bendigo Regional Institute of Technical and Further Education (BRIT) who was also an Australian Education Union (AEU) took action on behalf of the union who had contacted him about questions they had about an upcoming audit and fraudulent documents. The CEO responded to his questioning by sending an email to all employees warning them not to talk to him, suspending him from employment and coming to work as well as cutting of his internet access. This was ruled adverse action because he was acting as a union official at the time and was engaged in industrial action at the time of suspension and being cut off from internet. This case was the first ruled over the new Fair Work Act by the full high court and shows the full extent of the protections of employees under the new legislation as well as the strength and support it gives union members.
Another of the key change Fair Work created was the increase of the minimum wage increase of $26 per week in 2010 (Kearney, 2011), which significantly benefited those employed in minimum wage positions. The Fair Work Act also extended this wage protection so that any changes to the minimum wage go through Fair Work Australia; an organization set up specifically for the purpose of supporting the Fair Work Act and maintaining the rights and protections of the Australian workforce (Forsyth & Stewart, 2009).
The final change introduced in the Fair Work Act that impacted the protections of the Australian workforce was the abolition of AWA’s and the introduction of enterprise agreements and good faith bargaining. Kearney (2011) discusses the positive impact good faith bargaining has had on the Australian workforce in terms of flexibility and adaptability and claims that in the first 10 months after Fair Work Act’s introduction the number of individuals covered by an agreement went up by 10%. Through this agreement system employees cannot be asked to sign a contract that results in them getting less money than they are already on. These changes (as mentioned in the Barclay V BRIT case above) have allowed greater union participation in the agreement negotiation process (Sutherland & Riley, 2010) which is seeking to give employees are stronger voice in the bargaining and contract negotiating process. This is having a significant impact as such union interaction and employee voice was limited under Work Choices.
The Extent of the Impact of the Fair Work Act on Australian Workplace Employees Rights and Protections
The introduction of the Fair Work Act 2009 did have a significant positive impact on the workplace rights and the protections afforded to employees in many areas, however the idealistic industrial relations situation envisioned by the Labor Government never came fully into existence due to several factors including the limitations created by the existing contracts under Work Choices (WC) and the many limitations on employee rights that still exist.
Kearney (2011) who describes himself as a supporter who “welcomed” (p.1) the fair work act still points put its many flaws such as the need for an even further improved safey net to allow employees the confidence to create a work life balance. He claims there is a limited impact on employee rights to claim flexible working hours due to not being able to claim flexible options for children over 5 or aged parents. He also proposes problems with the good faith bargaining system and proposes more fair and appropriate options for different types of businesses. Sutherland and Riley (2010) discuss the positive attributes on creating Fair Work Australia as a support service for all Australians, however they also question the stability of the new system and whether many of the protections offered will stand up in court or be over turned. Like Kearney they agree that improvement to encompass more of the workforce under their protections is needed.
The introduction of the Fair Work Act 2009 (Clth) has had a significant impact on the rights and protections afford to the Australian workforce. This has been particularly positive in terms of the rights to union participation and action without fear of reprimand, as shown by Barclay V Board of Bendigo Regional Institute of Technical and Further Education as well as many protections on wage fairness and good faith bargaining when developing contracts. Whilst these and many other factors discussed have had a strong impact in restabilising the power imbalance after Work Choices, much of the industrial relations law in Australia still needs development to assure the workforce is supported in the way it should be. Therefore there are areas of the workforce that only experienced limited impact on their rights and protections and need further legislative change.
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