Differentiation Between Fair Work Australia and Workchoice

AN ESSAY ON THE CONTRACT BETWEEN FAIR WORK AUSTRALIA LEGISLATION AND WORKCHOICE, 2010

Prepared for:

Dr. Shalene Werth

Submitted:12 November 2010

Prepared by Li Chenyi

Differentiation between Fair Work Australia and WorkChoice

Fair Work Australia Fair Work Australia (FWA) is the new government industrial relations institution established by the Rudd Government's Fair Work Act 2009. It replaced WorkChoice act on 1 July 2009. This essay will compare and contrast FWA and WorkChoice from the theory of unitarism and pluralism. And discuss the transition of industrial relation system of Australia based on these two legislations.

In 2007, the Australia Labor Party (ALP) came to power, and then, the Rudd Government legislated amendments to all existing tribunals, bodies and agencies created by the Howard government with FWA in 2009 hence the Australia's workplace relations system changed. FWA is proposed to be a 'one-stop shop' for information, advice and assistance in settling grievances and disputes, ensuring compliance with industrial relations obligations, and overseeing the forward with fairness industrial relations system (Australian Labour Party 2007a, pp. 17-18).

The range of functions cover five areas including the safety net of minimum wages and employment conditions; enterprise bargaining; Industrial action; Dispute resolution; and Termination of employment (Fair Work ombudsman, 2010).

The responsibilities of FWA include:

1. The resolution of workplace grievances

2. Hearing unfair dismissal and unlawful termination claims

3. Adjusting minimum wages and award wages

4. Monitoring compliance with, and ensuring application of, legislation, awards and agreements

5. Regulating registered industrial organisations

The FWA is supported by the theory of pluralism, which indicated that workers and management are always in conflict, people needs to negotiation to assort with each party's interests.

Collective bargaining is at the heart of Labor's workplace relations system and FWA focus on collective bargaining. The legislation provides for a number of forms of collective agreement. These are all referred to as 'enterprise agreements' and no distinction is made between union and non-union agreements (Balnave, 2009, p. 482).

Although collective agreements were allowed under WorkChoice law, individual-level bargaining is the foundation of WorkChoices(Loudoun, 2009, p.109). While Fair Work Act allows for three types of agreements which include enterprise agreements, multi-enterprise agreements and greenfield agreements.

In the workplace, Befort & Budd (2009) stated that 'pluralists therefore champion grievance procedures, employee voice mechanisms such as works councils and labor unions, collective bargaining, and labor-management partnerships. While in the policy arena, pluralists advocate for minimum wage laws, occupational health and safety standards, international labor standards, and other employment and labor laws and public policies.

Pluralists argued that for conflict to be regulated, even if it can not be resolved, there are implications for the wider society (Loudoun, 2009, p.11). Consequently, they think that the conflict should be dealt by collective bargaining and is viewed not necessarily as a bad thing, and if managed could in fact be channeled towards evolution and positive change (Wikipedia, 2010). Australia Workplace Agreements (AWA) was an individual written agreement between an employer and employee about the employee's terms and conditions of employment, which prevailed over any state of federal award (Sappey, 2006, pp.268-9). Put forward with the Office of the Employment Advocate (OEA),

In view of unfair dismissal, the Rudd government's Fair Work Act made amendments to federal unfair dismissal laws. Unfair dismissal rights expand to more people. FWA defined the unfair dismissal as both "harsh, unjust or unreasonable dismissal" and that "the dismissal was not a case of genuine redundancy" (Fair Work Australia website, 2010). Further more, to protect legal right of employers, it is not defined as unfair dismissal if the employer is a small business employer and they follow the Small Business Fair Dismissal Code when dismissing an employee. Finally if employer is find illegal on unfair dismissal. It may order reinstatement or the payment of compensation up to 26 week's pay (to a maximum of $54150) to the employee if reinstatement would be inappropriate in the given circumstances (Loudoun, 2009, p80). Mark Phillips (2009) stated that "All workers have protection after a six month qualifying period (12 months for small businesses