Lawyers call for Government’s Fair Work review to examine adverse action, intervention by IR umpire

Industrial relations lawyers are calling for a review of general protection provisions and lowering the bar for the industrial umpire to intervene in disputes, as the Government gives further details on the targets of its review of the Fair Work Act next year.

Workplace Relations Minister Chris Evans has told The Australian newspaper the review will look into whether Fair Work Australia has sufficient power to ensure good faith bargaining is taking place, and also consider whether employers should be required to give the same amount of notice as employees about a planned lockout.

In the wake of the Qantas dispute, Evans told the paper the review would also consider whether a new bargaining code for employers, unions and workers should be introduced.

“One of the things that I think is worth exploring is this question of good faith bargaining, our experience with that, the understanding of the parties, and the role of Fair Work Australia in ensuring the bargaining is in good faith,” Evans told the paper.

He added that in New Zealand and Canada there is “much more guidance about how one bargains and what it means.”

Hall & Wilcox employment partner Alison Baker says she hopes the review goes further than that flagged by Evans, and puts the operation of the Act under the microscope.

“Our clients have struggled with general protections provisions, it’s not clear how broad they are,” Baker says.

The general protection provisions of the Fair Work Act state that an employer must not take any “adverse action” against an employee because the employee has exercised or proposes to exercise a “workplace right”, such as union rights, the right to request flexible work arrangements, the right to make complaints about their employment, the right to make enquiries about pay and the right to request information about further disciplinary action.

Baker says Evans’ comments on whether FWA has sufficient tools to ensure good faith bargaining is taking place were probably driven by the small levels of case law to give guidance.

Macpherson + Kelly principal Andrew Douglas expects the review to deliver “greater capacity for interventions from FWA”.

“There is a need to have an easier trigger mechanism to cool people off,” Douglas says. “Now when people an make application to suspend or terminate, they know it’s unlikely to succeed.”

“At the moment, the suspension and termination and cooling off provisions create too high a bar to allow the umpire to intervene,” Douglas says.