FAIR WORK COMMISSION
Author’s Note:
Introduction.
Fair work commission is a tribunal established by the act of parliament of the Australian government to protect and uphold the rights of workers in Australia. The commission was formed in 2009 as one way of reforming the labor relations in Australia. It is an independent Commission with the following functions: setting minimum wages awards, making enterprise development and encourage or facilitate good faith work related bargaining (Australia, 2013). The Commission also hears unfair dismissal of employees by their employers, indicates how the industrial action is to be done, solving of individual and collective workplace disputes by using methods such as public hearing, mediation, arbitration and conciliation among other functions. The commission is headed by the President appointed by the governor of Australia on the recommendation of Australian Government. The paper discusses the role of the commission in the making and approving of the agreement. The agreement is very critical in the administration of justice especially in the labor market and therefore the agreement forms the basis of this paper and how the Commission is performing this role.
An agreement can be defined as the legally enforceable contract binding between two or more legally competent persons or parties. The Commission act defines agreement as the meeting of mind with the understanding of legal rights, duties, and obligation which the parties concerned intend to exchange. For example, the enterprise and industrial agreement (Women and Work Commission, 2016) Industrial agreement are the agreement between the employees and employers while enterprise agreement applies to both single business and group of businesses. The Commission performs the following functions in regards to making and approval of agreements
Education. The Commission educates both the employees and employers on their rights. For instance, employees are educated on their minimum wage laws. The employee right is protected by the Commission since the information regarding the remuneration of workers is made public. This facilitates agreement and approval. Employers, on the other hand, are also educated as to how much they can offer their employees without hurting them depending on the prevailing economic conditions. For example, the Commission can recommend a price floor aimed at protecting producers.
Determination of the type of the agreement. The Commission entrusted with the function of determining the agreement in question. For example, the Commission must define the agreement as to whether it is enterprise, the agreement based on traditional instruments. Further the Commission to find out the extent of the enterprise agreement whether it is single enterprise, multi-enterprise or greenfield agreement. For example, the making and approval of single enterprise and multi-enterprise are totally different due to their difference in their definition. A single enterprise agreement is an agreement made between one employer against many employees employed at the same time and are covered by the agreement. As opposed to a single enterprise agreement, a multi-enterprise is an agreement made between employers against employees employed at the time and covered by the same agreement. The commission role, therefore, is to determine the agreement so as to reach a fair and just approval. For example (a case of Teys Verses Australasian Meat industries Limited, 2012) where it was held that the agreement was single enterprise and the Commission acted within its mandate in giving its recommendation regarding the unfair dismissal of Tey.
Legal interpretation of the agreement. During the making and approval of the agreement, the Commission has the role in interpreting the terms of the agreement which makes the agreement legal. For example, the Commission ensures that the enterprise agreement has the following element to meet the legal threshold. First nominal expiry date which is four years from the time of the approval by the Commission.Secondly, the flexibility of the term that makes both the employer and the employee comfortable in agreement (Michelson,2013).That is the term should enable both employees and employers to reach equilibrium or break even. Thirdly, consultation term that requires that employers consult employees in situations where an employer wants to introduce any change in the working environment. Finally, the Commission identifies terms which excluded in the agreement such as discriminatory terms which can be based on gender, race, religion or political affiliation. Such discriminatory clauses are removed before the approval of the agreement.
Appoints the bargaining representative. The Commission appoints the bargaining representative to ensure fair and just agreement between the concerned parties or individuals. The Fair work act of 2009, defines a bargaining representative as the employer that will be covered by the agreement, a trade union representing the employees covered by the agreement and any other person given by the parties for either employees or employers in writing to the Commission that is to be covered by the agreement. The role of the Commission is to ensure that the said bargaining represented meets the set selection criteria.
Ensures that both employees and employers conform to the approval rules. The Commission ensures that before any approval is made within seven days to the approval of the agreement, employees are served with the copy of the agreement which they are party to and that employer(s) informs the employees when the voting will be made and the method to be used. Where the employees cannot understand a certain legal term, such employees are allowed by the Commission to find a legal assistant from lawyers to be included as a friend of the agreement. In addition, all steps to be taken to ensure that employees and employers are conversant with the term of the agreement .The employees must endorse this agreement to be approved (Lessambo, 2013). The Commission, therefore, the primary role is to ensure that these steps are followed to the latter to avoid any crisis in future.
Determination of the successful of a vote. The Commission role is to ensure that there I guideline for a vote to be said successful. The Commission considers a vote successful if more than three quarters endorse the agreement for the case of single enterprise agreement and if the more than 75% of employees of at least one employer who cast a valid vote endorse the agreement in the case of multi-enterprise agreement.
Approving of the agreement. It is the constitutional role of the Commission that all agreement be approved by the Commission. Before the approval, the Commission has to be satisfied by the following;
The agreement is legal and employees and employers have endorsed it unanimously.
The agreement specifies the expiry date and provides a disputes settlement procedures.
There is a consultation clause and flexibility clause that allows for future negotiations.
The agreement is in agreement with good faith bargaining.
An agreement is considered a green field if the employees or workers of the organization covered by the agreement are entitled to represent the interest of the majority of workers in the organization or the agreement is in the interest of the public. The Commission role extends to classifying the agreement in various classes or categories.
Dispute resolution arising from bargaining. In a situation where there is a dispute in bargaining representative, the dispute may be due to failure to act in good faith during bargaining by the parties involved, the Commission can mediate and solve such disputes. The Commission can give a bargaining order in its attempt to solve the dispute (Clark, 2015). The order entails the actions to be taken to ensure fair and efficient bargaining. Under this role, the Commission ensures transparency, accountability, and professionalism in agreements. In a case where the parties involved cannot reach an agreement, the Commission intervenes where it required by law to make a determination regarding bargaining order. The Commission can also declare a serious violation of the agreement between the parties concerned and can recommend severe punishment to the party not acting in the utmost good faith as the agreement clause requires.
Approval of industrial action. The Commission has the role to declare a hostile party in the negotiation and can approve the industrial action. Industrial action may be called after the union representing employees obtain a go-ahead from the Commission. The industrial action includes a go slow by employees, peaceful demonstration and boycotting jobs by the employees especially where their rights have been violated as determined by the Commission. The role gives the Commission power to act agreement. an industrial court.
The Commission assists the low paid worker during the making and approving of the agreement. For example, a trade union may apply to the Commission to request for low paid worker bargaining authorization. The Commission may consider the application based on the following factors; whether the employees and employers are bargainings for the first time or they faced some difficulty in the previous negotiation process. Secondly, the current terms and conditions of the contract that binding the employers and employees. The Commission then makes a determination on to whether to allow the making and approval of the agreement.
However, the Commission faces various challenges in playing their role in making and approval of the agreement. For example, the Commission cannot interpret the law and give advice but just give information that may be challenged in a court of law and therefore cannot solve issues or agreement of underemployment.
There has a protest from the labor demand side about the unfair agreement with the employees that have made the employers to recruit casuals instead of permanent jobs. The action of these employers have affected the work of the Commission since the there are many agreements that do not pass through the Commission (Fair Work Australia, 2011). In addition, many agreements, especially in the informal sector, do not pass through the Commission and this makes the work of the Commission difficult. The Commission has done the tremendous job since its formation as the unfair practices in the job market has greatly reduced by 65%.
In conclusion, the Commission has resolved many of Australian work-related problems. The Commission only requires goodwill from both the general public and the government to effectively deliver to its mandate.The informal sector still remains a challenge to the Commission to address the work-related disputes and to ensure the nationals and non-national of the Australian workforce enter into a fair agreement. The Commission, therefore, appealing to employers to accept the trade union of employees and to reach a contract that addresses the challenges of their employees. Employees also are advised to join trade unions for smooth collective bargaining in the event that a dispute arise. The Commission further advises that all employment issues should be brought before the Commission to avoid any industrial action and poor working condition of workers. In order to accomplish these roles, the Commission appealing to the government for the financial and moral support that can allow it performs its function.
References
Australia. (2013). Fair Work Commission.
Clark, E. E., In Stuyck, J., & In Terryn, E. (2015). The commercial and economic law in Australia.
Fair Work Australia. (2011). Submission to the Fair Work Australia annual wage review [2011-]
Lessambo, F. I. (2013). The international corporate governance system: Audit roles and board oversight.
Michelson, G., Jamieson, S., & Burgess, J. (2013). New employment actors: Developments from Australia. Bern, Switzerland: Peter Lang.
Women and Work Commission (Great Britain). (2016). Women & Work Commission: A fair deal for women in the workplace; an interim statement. London: Dept. of Trade and Industry.